Skip to main content

Full text of "The Constitutional History Of England"

See other formats 


TIGHT  BINDING  BOOK 


Pages  are  missing 


03  >  DO 

166201 


OUP-  880—  5-8-74—  1  0,000  . 

OSMANIA  UNIVERSITY  LIBRARY 

Call  No.   3  ^2**  ^^  Accession  No.    JO  iT 


^)  oi  .fiw 

before  the  aate  last 


Title  C 

This  book  should  be  returned  on  or  before  the  aate  last  marked  below. 


THE 

CONSTITUTIONAL 
HISTORY  OF   ENGLAND 


A  COURSE  OF   LECTURES  DELIVERED 


BY 


F.    W.    MAITLAND,    LL.D. 


,     CAMBRIDGE: 
at  the  University  Press 
1919 


First  Edition  1908 
Reprinted  1909,   1911,   1913,  19*9- 


PREFACE 

"  I  have  written  a  course  of  lectures  in  six  months  on 
Constitutional  History.  Do  I  publish  it?  No."  The  lectures 
written  in  six  months,  which  Professor  Maitland  told  the 
Cambridge  Law  Club  would  not, be  published,  were  delivered 
during  the  Michaelmas  term  of  1887  and  the  Lent  t^rm  of 

1888,  and  were  specially  designed  for  the  needs  of  under- 

f 

graduates  of  the  University  of  Cambridge  reading  for  the 
Law  Tripos.  The  last  word  of  the  last  lecture  was  written  on 
April  7,  1888. 

Let  us  observe  the  date.  Maitland  had  been  recalled  to 
Cambridge  as  Reader  in  English  Law  in  1883  and  this  is  one 
of  his  early  courses  of  academic  lectures  delivered  before  his 
election  to  the  Downing  Chair  in  the  summer  of  1888.  It  was 
written  seven  years  before  the  appearance  of  the  History  of 
English  Law,  nine  years  before  Domesday  Book  and  Beyond, 
ten  years  before  Township  and  Borough,  twelve  years  before 
the  Introduction  to  Gierke's  Political  Theories  of  the  Middle 
Ages.  From  inttgnal  evidence  it  would  seem  that  sonae  of 
the  earlier  lectures  were  composed  before  the  completion  of 
Bracton's  Note  Book  in  1887.  Much  of  the  ground  which  is 
here  covered  was  afterwards  traversed  with  greater  delibera- 
tion and  more  elaborate  scrutiny;  some  part  of  the  journey 
Maitland  had  never  the  leisure  to  retrace.  Yet  the  student  of 
his  work  will  find  in  these  early  discourses  many  of  the 


vi  Preface 

seminal  ideas  which  were  subsequently  developed  in  the 
History  of  English  Law,  and  here,  as  elsewhere,  will  admire 
the  union  of  high  speculative  power  with  exact  and  compre- 
hensive knowledge  of  detail.  This  volume  then  is  not  a 
specimen  of  Maitland's  polished  and  mature  work  ;  it  does 
not  claim  to  be  based  upon  original  research;  for  much  of  his 
information  the  Reader  of  English  Law  was  confessedly  con- 
tent to  draw  upon  the  classical  text-books,  Hallam,  Stubbs, 
Dicey,  Anson,  the  study  of  which  he  frequently  commends  to 
the  attention  of  his  audience.  Yet  although  the  manuscript 
was  laid  aside,  and  the  larger  theme  was  abandoned  for  more 
special  researches  into  medieval  law,  the  author  would  some- 
times admit  that,  did  time  allow,  the  course  of  lectures  upon 
Constitutional  History  might  be  worked  up  into  a  shape 
worthy  of  publication. 

There  is  much  to  be  said  against  printing  work  which  was 
not  intended  for  the  press,  and  I  should  not  have  ventured  to 
recommend  the  publication  of  these  lectures  but  for  three 
compelling  reasons.  The  first  is  that  the  lectures  cannot 
detract  from  Maitland's  reputation;  but  must, on  the  contrary, 
if  possible,  enhance  it;  showing,  as  they  do,  that  the  profound 
student  was  also  a  brilliant  populariser  of  knowledge.  The 
second  is  that  the  lectures  contain  several  new  and  original 
ideas,  which  Maitland  had  no  opportunity  of  expressing  in  his 
later  work  and  which  we  cannot  afford  to  lose.  The  third  is 
that,  there  is  no  book,  to  my  knowledge,  which  provides  so 
good  an  introduction  to  the  study  of  English  Constitutional 
History  or  which  is  likely  to  be  more  highly  valued  by  practical 
teachers  of  the  subject  at  our  Universities.  I  can  vouch  good 
and  lawful  men  to  warranty.  Professor  Dicey,  Sir  Courtenay 
Ilbert  and  Mr  C.  R.  L.  Fletcher  were  kind  enough  to  look 
over  the  manuscript  and  concurred  in  urging  its  publication. 


Preface  vii 

The  editor's  part  has  been  insignificant  The  lectures  are 
printed  as  they  were  delivered,  and  there  has  been  no  attempt 
to  rewrite,  expand  or  compress  wherever  the  manuscript  was 
fairly  written  out.  In  a  few  places  however  the  manuscript 
took  the  form  of  brief  notes  which  have  been  expanded  with 
as  strict  an  economy  of  words  as  is  consistent  with  grammar. 
In  one  place  the  substance  of  a  missing  page  was  happily 
recovered  from  notebooks  kindly  lent  to  the  editor  by  Dr 
Pearce  Higgins  of  Downing  College  and  Mr  A.  H.  Chaytor  of 
Clare  College.  For  the  references  and  remarks  in  the  foot- 
notes the  editor  is  responsible,  save  where  they  are  followed 
by  the  initials  of  the  author.  The  references  to  the  Statutes 
have  been  verified. 

Help  has  been  generously  given  by  many  friends,  in 
particular  by  Sir  Courtenay  Ilbert,  who  has  contributed  many 
valuable  suggestions  with  reference  to  the  last  section  of  the 
volume.  The  editor  will  be  grateful  to  his  readers  for  any 
further  suggestions  by  means  of  which  a  second  edition  of  the 
book,  should  one  be  called  for,  may  be  made  more  fully 
worthy  of  the  author  and  the  subject. 


H.  A.  L.  FISHER. 


NEW  COLLEGE,  OxroRa 
May  1908. 


ANALYSIS1 

Outline  of  the  course.  Sketch  of  public  law  at  five  periods, 
(I)  1307,  (II)  1509,  (III)  1625,  (IV)  1702,  (V)  the  present  day. 
Reasons  for  this  choice  of  periods.  The  first  and  last  sketches 
will  be  the  most  thorough. 

PERIOD  I. 
ENGLISH  PUBLIC  LAW  AT  THE  DEATH  OF  EDWARD  L 

A.     General  Characteristics  of  English  Law  and  Revietv  of 

Legislation. 

(i)  Before  1066.  Dooms  of  the  kings  and  witan ;  substratum  of 
traditional  law  (folk  right) ;  local  customs ;  theory  of  the  three  laws, 
West  Saxon,  Mercian,  Danish  ;  formalism  of  traditional  law ;  Roman 
law  unknown ;  influence  of  the  church ;  characteristics  of  the  dooms 

Pages  i — 6 

(ii)  1066 — 1154.  What  law  had  the  Normans?  Survival  of 
English  law ;  confirmations  by  William  I  and  Henry  I.  Law  books : 
Leges  Edwardi,  Willelmiy  Henrici  Primi\  fusion  of  English  and 
Norman  (Prankish)  law.  Genuine  laws  of  William  I;  charters  of 
Henry  I  and  Stephen;  Domesday  Book  .  .  .  6— 10 

(iii)  1154 — 1215.  Henry  II  as  a  legislator;  Constitutions  of 
Clarendon  (1164);  growth"  of  Canon  law;  study  of  Roman  law; 
4  assizes  ^possessory  assizes  and  grand  assize;  assizes  of  Clarendon 
(i  166)  and  Northampton  (1176).  Law  books :  Glanvill  (circ.  1 188) ; 
Dialogus  de  Scaccario;  the  first  Plea  Roll  (1194)  .  .  10 — 14 

1  Printed  copies  of  this  analysis  or  syllabus  were  supplied  to  those  who 
attended  the  course  of  lectures.  A  few  slight  changes  have  been  made,  where  the 
order  of  topics  in  the  lectures  does  not  correspond  with  that  laid  down  in  the 
analysis. 


x  Analysis 

(iv)  1215 — 1272.  The  Charter:  various  editions,  1215,  1216, 
1217,  1225;  its  character;  beginning  of  statute  book;  Statute  of 
Merton  (1236),  of  Marlborough  (1267);  the  Barons'  war.  Study  of 
jurisprudence:  Bracton  (ob.  1268);  Roman  law  and  English  'case 
law';  evolution  of  common  law 14 — 18 

(v)  1272 — 1307.  'The  English  Justinian.'  The  great  statutes, 
1275  Westminster  I,  1278  Gloucester,  1284  Wales,  1285  West- 
minster II  and  Winchester,  1290  Westminster  III,  1297  Qgnfirmatio 
Cartarum ;  their  character  and  permanent  importance.  Edward  as 
an  administrator.  Law  books  :  Britton,  Fleta.  The  first  Year  Book, 
1292.  Check  on  growth  of  unenacted  law.  Roman  law  ceases  to 
be  studied.  Growth  of  class  of  lawyers.  €  Common  law,'  contrasted 
with  statute,  local  custom,  ecclesiastical  law ;  not  yet  with  '  equity ' 

18—23 
B.      The  Land  Law. 

Reasons  for  starting  with  land  law    ....         23 — 24 

Theory  of  tenure.  Subinfeudation :  stopped  by  Statute  of 
Westminster  II ;  the  feudal  formula  A  tenet  terram  de  B.  Tenure 
and  service.  Classification  of  tenures:  (i)  frank  almoign;  (2) 
knight's  service;  the  knight's  fee;  homage,  fealty;  aids,  reliefs, 
primer  seisin,  wardship,  marriage,  fines  on  alienation,  escheat ; 
(3)  grand  serjeanty;  (4)  petty  serjeanty;  (5)  free  socage;  incidents 
of  socage  tenure ;  (Note,  classification  of  tenures  not  a  classification 
of  lands ;  the  same  land  may  be  held  by  several  tenures.  Note 
military  service  done  only  in  the  king's  army ;)  (6)  villeinage ;  villein 
status  and  villein  tenure  ;  tenementum  non  mutat  statum  .  24 — 35 

Definition  of  freehold ;  liberum  tenementum  opposed  to  villanum 
tenementum;  afterwards  also  to  chattel  interests.  Treatment  of 
chattels;  testamentary  causes  go  to  court  Christian;  no  wills  of 
freehold ;  primogeniture,  its  gradual  spread. 

[The  manor  and  its  courts;  court  baron  and  customary  court; 
who  were  the  judges?  Had  every  manor  freeholders?  No  more 
manors  to  be  created  (1290).] 

Feudal  ideal ; — no  connection  between  lord  and  vassal's  vassal ; 
this  ideal  to  be  had  in  mind  that  we  may  see  how  far  it  is  realized 

?v35— 39 
C.     Divisions  of  the  Realm  and  Local  Government. 

(i)  The  shire;  its  history;  shire  moot;  ealdorman;  sheriff;  the 
Norman  earl  (comes)  and  Norman  sheriff  (uicecomes).  The  county 


Analysis  xi 

court  (shire  moot)  not  feudalized ;  its  constitution ;  its  political 
importance ;  quasi-corporate  character  of  county ;  acts  as  a  whole 
for  many  purposes ;  election  of  coroners  (i  194) ;  struggle  for  elective 
sheriffs ;  the  county  (court)  represented  in  parliament  .  39 — 44 

(ii)  The  hundred ;  its  history ;  hundred  moot :  quasi-corporate 
character  of  the  hundred ;  its  duties ;  represented  in  the  eyres  by 
jurors.  Hundreds  in  private  hands ;  the  court  leet  and  the  sheriffs 
turn ;  the  Serjeant  of  the  hundred 44— 46 

(iii)  The  vill  or  township ;  its  duties ;  represented  in  the  eyre 
by  reeve  and  four  men ;  election  of  the  reeve.  Relation  of  the 
township  to  the  manor 47 — 52 

(iv)  The  boroughs;  each  borough  has  its  own  history;  generaliza- 
tion difficult.  Privileges  of  boroughs  may  be  brought  under  several 
heads  :  (a)  immunities ;  (b)  courts  of  their  own,  like  hundred-courts ; 
(c)  elective  officers,  baillivi,  praepositi\  (d)  collection  of  royal  dues, 
thejfirma  burgi\  (e)  guilds.  The  city  of  London.  The  notion  of  a 
corporation  (juristic  person)  not  yet  formed ;  but  the  greater  towns 
have  what  are  afterwards  regarded  as  the  powers  of  corporations 

52-54 

D.     Central  Government. 
Retrospect : — 

(i)  Before  1066.  King  and  witan;  actual  composition  of 
witenagemot;  theory  that  it  had  been  a  folk  moot;  the  bishop; 
the  ealdorman;  the  thane  (minister  regis).  Tendency  towards 
feudalism.  Powers  of  this  assembly;  election  and  deposition  of 
kings,  appointment  of  officers,  legislation,  judicature,  etc. ;  but  really 
there  is  little  central  government.  Kingship  increases  in  splendour ; 
but  rather  in  splendour  than  in  power  ....  54 — 60 

(ii)  1066 — 1154.  Title  to  the  kingship;  practical  despotism  of 
Norman  kings ;  tradition  of  counsel  and  consent  maintained.  The 
Curia  Regis,  how  far  formed  on  feudal  lines ;  number  of  tenants  in 
chief;  suit  of  court  a  burden.  The  curia  Regis  in  a  narrower  sense; 
the  administrative  body;  the  officers  of  state,  justiciar,  chancellor; 
the  exchequer  and  its  routine 60 — 64 

(iii)  1154 — 1216.  Definition  in  Charter  (1215)  of  commune 
consilium  regni.  Who  were  the  barones  majores  and  what  was  a 
baroniat  Line  of  demarcation  gradually  drawn  among  tenants  in 
chief.  Assemblies  under  Henry  II;  consent  to  legislation  and 
taxation.  The  administrative  and  judicial  body ;  professional  judges 
under  Henry  II;  itinerant  judges ;  the  barons  of  the  exchequer 

64—69 


xii  Analysis 

(iv)  1216—1295.  Changes  in  the  Charter.  Grpwth  of  repre- 
sentation; parliament  of  1254;  later  parliaments;  events  of  1261, 
1264,  1265  ;  doubts  as  to  constitution  of  later  parliaments;  parliament 
of  1295  becomes  a  model  ......  69  —  75 

Constitution  of  parliament  of  three  estates. 

(1)  Clergy:    the    bishops,    their    two-fold    title;    abbots;    the 
inferior   clergy;   praemunientes  clause;    parliament   and    the    con- 
vocations     .........         75  —  78 

(2)  Baronage  :  difficulties  created  by  demand  for  a  strict  theory  ; 
tenure  by  barony  and  barony  by  tenure  ;  barony  by  writ  ;  a  distinct 
theory  of  hereditary  right  supersedes  a  vaguer  theory  of  right  by 
tenure.     Judges  and  other  councillors  summoned  ;  their  position 


(3)  Commons:  communes  and  communae\  the  electors  in  the 
shire  ;  representation  of  the  county  court  ;  the  boroughs  ;  demesne 
and  other  boroughs  j  the  electors  in  the  boroughs  ;  non-representation 
of  the  palatinates  ........  85  —  90 

Magna  Concilia  as  contrasted  with  Parliamenta  :  specification  of 
terms  .  ...  ^  ......  90 

The  Concilium  Regis  \  growth  during  minority  of  Henry  III; 
relation  of  council  to  parliament,  as  yet  undefined. 

1.  Legislation  ;  in  parliament,  in  a  Magnum  Concilium,  in  the 
permanent  council.      Line  between  statute   and   ordinance  slowly 
drawn. 

2.  Taxation  ;  sources  of  royal  revenue,  profits  of  demesne  lands, 
feudal  dues,  profits  of  justice,  sale  of  privileges  and  offices,  eccle- 
siastical  dues,    tallage  of  demesne  lands,  customs;    extraordinary 
revenue,  Danegeld,  carucage,  taxes  on  movables.    Consent  necessary 
to   taxation;    charter   of    1215;    practice    under    Henry    III    and 
Edward   I;    crisis   of   1297;    the    Confirmatio    Cartarum  and  De 
Tallagio  non  concedendo         ......         91  —  96 

v^he  kingship  ;  becoming  hereditary  ;  coronation  oaths.  '  The 
king  can  do  no  wrong  '  :  —  meaning  of  this.  Theory  of  kingship  in 
Bracton;  the  right  to  revolt  Modern  notion  of  'sovereignty'  in- 
applicable; denied  by  current  doctrine  of  church  and  state.  The 
king  as  a  legislator  ;  Glanvill  and  Bracton  on  Quod  principi  placuit, 
etc.  Legislation  by  means  of  new  writs;  can  the  king  make  new 
writs?  —  a  limit  set  to  this  power  .....  97  —  105 


Analysis  xiii 

E.     Administration  of  Justice. 

The  courts  are  (i)  communal,  (2)  feudal,  (3)  royal,  central  and 
permanent,  (4)  royal,  local  and  temporary  (visitatorial),  (5)  eccle- 
siastical. General  principles  as  to  their  competence. 

The  king's  court  to  start  with,  (a)  a  court  of  last  resort  when 
justice  denied,  (ff)  a  court  for  the  tenants  in  chief,  (c)  a  court  for 
pleas  of  the  crown  .  .  ....  105 — 107 

Growth  of  royal  jurisdiction : — 

(i)  Criminal.  Pleas  of  the  crown;  in  Canute's  laws;  in  Leges 
Henrici  Primi;  gradual  extension  by  means  of  the  ideas  of  (a)  king's 
peace,  (b)  felony.  The  appeal  and  indictment  .  .  107 — in 

(ii)  Civil.  Lines  of  progress,  (i)  evocation  of  causes  quod  nisi 
fcceris,  etc.;  (2)  no  one  need  answer  for  freehold  without  writ; 
(3)  royal  procedure  of  grand  assize;  (4)  royal  possessory  assizes; 
(5)  writs  of  praedpe'y  contempt  of  king's  writ;  (6)  king's  peace; 
action  of  trespass.  The  king's  court  offers  advantages  to  suitors, 
e.g.  trial  by  jury Ill — 115 

History  of  procedure.  Archaic  procedure;  proof  comes  after 
judgment  and  is  an  appeal  to  the  supernatural :  oaths ;  compurgation ; 
formal  witness  procedure ;  ordeals ;  (after  Conquest)  battle.  Germ 
of  jury-trial  not  to  be  found  in  England ;  but  in  prerogative  procedure 
of  Prankish  kings ;  the  Prankish  inquisitio ;  trial  by  the  oath  of 
presumably  impartial  neighbour-witnesses ;  introduced  into  England 
as  a  royal  privilege;  Domesday  book.  Generalization  of  inquest 
procedure  under  Henry  II;  regale  benefidum\  (i)  grand  assize, 
(2)  possessory  assizes,  (3)  the  jurata  in  civil  cases,  (4)  the  accusing 
jury  (connexion  with  Ethelred's  law  disputed),  (5)  the  jurata  in 
appeals  and  indictments;  peine  forte  et  dure.  Jurors  still  witnesses 
at  end  of  thirteenth  century.  Local  courts  never  attain  to  trial  by 
jury 115—132 

The  courts  in  the  time  of  Edward  I.  Work  of  (a)  communal, 
(b)  feudal  courts,  rapidly  diminishing:  Statute  of  Gloucester,  (c) 
The  king's  central  court  has  divided  itself;  extinction  of  the  justiciar- 
ship;  (i)  king's  bench,  (ii)  common  pleas,  (iii)  exchequer,  (iv)  king  in 
parliament,  (v)  king  in  council.  History  of  the  (d)  visitatorial  courts; 
justices  in  eyre;  the  more  modern  commissions,  (i)  assize,  (2)  gaol 
delivery,  (3)  oyer  et  terminer  ......  132 — 141 

M.  b 


xiv  Analysis 

F.     fietrosptct  of  Feudalism. 

Notion  of  a  c  feudal  system,1  as  a  system  of  European  common 
law  introduced  by  Spelman,  popularized  by  Wright  and  Blackstone ; 
an  early  effort  of  comparative  jurisprudence;  it  is  valuable,  but 
differences  between  various  countries  are  great  and  should  not  be 
overlooked .  141 — 143 

Attempts  to  define  feudalism.  How  far  was  the  feudal  idea 
realised  in  England? 

Tendency  towards  feudalism  in  Anglo-Saxon  law;  the  territorial  iza- 
tion  of  legal  relationships;  its  economic  causes,  (i)  The  thegnage; 
the  thegn  as  a  landowner;  military  duty  and  land-owning;  folkland 
becoming  terra  Regis.  (2)  The  duty  of  having  a  lord  imposed  by 
the  state.  (3)  Grants  of  jurisdiction.  (4)  Dependent  landowners ; 
villeinage  .  143—151 

Feudalism  in  the  Frank  Empire;   benefirium  and  fcodum ;   the, 
breaking  up  of  the  dominium.     Jurisdiction  in  private  hands.     The 
kmgjprimus  inter  pares.     Relation  of  the  Duke  of  Normandy  to  the 
king  of  the  French. 

In  what  sense  William  introduced  feudalism.  The  theory  of 
tenure :  all  land  brought  within  it ;  a  quiet  assumption ;  feudal  tenure 
not  the  mark  of  a  noble  or  military  class.  So  far  as  feudalism  is 
mere  private  law  England  is  the  most  feudalised  of  all  countries 

152—158 

Gradual  development  of  doctrine  of  military  service  by  means  of 
particular  bargains,  not  completed  until  scutage  is  imposed  and 
feudalism  is  on  the  wane.  Elaboration  of  'incidents  of  tenure*  is 
also  gradual ;  burdens  of  wardship  and  marriage  unusually  heavy  in 
England. 

But  political  influence  of  feudalism  is  from  the  first  limited, 
(i)  Oath  of  allegiance  exacted.  (2)  Man  never  bound  by  law  to 
fight  for  any  but  the  king ;  private  war  never  legal.  (3)  Duty  of  all 
to  serve  in  army  irrespective  of  tenure  is  maintained.  (4)  Taxation 
not  limited  by  feudalism.  (5)  Feudal  justice  has  but  a  narrow 
sphere;  communal  courts  retained  and  not  feudalised.  (6)  King's 
court  and  council  not  definitely  feudalised  •  ,  .  158— -164 


Analysis  xv 


PERIOD   II. 

SKETCH  OF  PUBLIC  LAW  AT  THE  DEATH  OF  HENRY  VII. 
A.     Parliament. 

1.  Its  Constitution. 

-     History  of  the  three  estates. 

(i)  Clergy : — bishops,  abbots ;  non-attendance  of  clerical 
proctors. 

(ii)  Lords : — the  dukes,  marquises,  viscounts.  Peerage  by 
patent  and  peerage  by  writ.  Barony  by  tenure.  Number  of  peers. 
Idea  of  'peerage';  right  to  trial  by  peers  admitted,  but  within  narrow 
limits.  Court  of  the  High  Steward.  The  peerage  not  a  caste. 
Preponderance  in  the  House  of  Lords  of  lords  spiritual. 

(iii)  Commons  : — Number  of  members.  The  county  franchise  ; 
the  forty  shilling  freehold.  Number  of  boroughs  represented.  The 
borough  franchises.  Wages  of  members. 

Arrangement  of  Parliament  in  two  houses;  when  effected. 
Functions  of  the  two  houses.  Wording  of  the  writs  .  165 — 177 

2.  Jrequency  and  Duration  of  Parliaments. 

Annual  Parliaments.  Statutes  of  1330  and  1362.  Intermissions 
of  Parliaments  become  commoner  under  Edward  IV  .  177 — 178 

3.  Bit  sine  ss  of  Parliament. 

We  must  not  start  with  a  theory  of  parliamentary  sovereignty; 
such  a  theory  the  outcome  of  struggles  ....  179 

(i)  Taxation : — here  the  need  of  Parliaments  is  established. 
Direct  taxation  without  consent  of  Parliament  becomes  impossible. 
History  of  indirect  taxation.  Benevolences.  Parliamentary  taxation; 
taxation  of  clerical  estate.  Money  grants  to  be  initiated  by  the 
Commons :  form  of  grants.  Tonnage  and  poundage.  Wealth  of 
Henry  VII.  Change  in  the  king's  financial  position.  Purveyance 
and  preemption.  Audit  of  accounts  and  appropriation  of  supplies 

179—184 

(ii)  Legislation.  Changes  in  the  legislative  formula.  Original 
equality  of  commons  and  clergy.  Declaration  of  1322.  Gradual 
coordination  of  lords  and  commons.  Magna  concilia.  Legislation 
by  the  king's  Council ;  ordaining  and  dispensing  powers.  Forms  of 
bill  and  statute.  Royal  dissent.  Growing  bulk  of  statute  law: 
character  of  the  statutes  ......  184—^0 


xvi  Analysis 

B.     The  King  and  his  Council. 

The  king's  title  :  events  of  1327  and  1399.  Title  of  Henry  IV, 
Edward  VI  and  Henry  VII.  Legitimism  of  the  Yorkists  190 — 195 

His  powers  or  'prerogatives':   their  wide  and  indefinite  extent 
The  character  of  the  kingship  varies  with  the  character  of  the  king ; 
but  law  varies  little.     Thus  the  (so-called)  'New  Monarchy1  is  intro- 
duced without  change  in  the  law.     Fortescue's  theory  of  the  king- 
ship      .  .  195—199 

The  Council:  its  constitution;  its  constantly  changing  character. 
Royal  minorities  and  regencies.  The  Council  as  a  council  of 
regency.  Under  Edward  IV  and  Henry  VII  it  becomes  strong  as 
against  the  people,  weak  as  against  the  king.  The  king's  seals; 
1  ministerial  responsibility.'  Functions  of  the  Council  .  199 — 203 

C.     Administration  of  Justice. 

Decay  of  feudal  and  communal  courts.  The  justices  of  the 
peace ;  their  history ;  their  ever-growing  powers ;  summary  penal 
jurisdiction;  their  connexion  with  the  council.  The  three  courts 
of  common  law.  The  commissions  of  assize,  etc.  The  nisi  prius 
system.  Trial  by  jury ;  changes  in  its  character ;  in  civil  cases ;  in 
criminal  cases ;  grand  and  petty  juries ;  peine  forte  et  dure.  Appeals 
and  indictments.  Fortescue  on  the  jury  .  .  .  204 — 213 

Jurisdiction  of  the  Parliament  (i.e.  for  this  purpose,  House  of 
Lords) : — (i)  trial  of  peers,  (ii)  writs  of  error,  (iii)  impeachments. 
Contrast  between  impeachments  and  acts  of  attainder;  early 
instances 213 — 216 

Jurisdiction  of  the  Council,  (j)  as  courts  of  error, — this  sup- 
pressed; (2)  as  a  criminal  tribunal  of  first  instance;  statutes  and 
petitions  against  it;  gradual  acquiescence  of  Parliament;  jurisdiction 
of  Council  acknowledged  by  statute ;  question  as  to  the  legality  of 
the  jurisdiction;  the  Act  of  1487.  (3)  Jurisdiction  of  Council  in 
civil  cases ;  growth  of  the  Court  of  Chancery  .  .  216 — 221 

The  chancellor  and  his  powers.  Petitions  to  the  king  for  civil 
relief  referred  to  the  chancellor.  He  is  warned  off  the  field  of 
common  law;  but  acquires  an  'equitable'  jurisdiction.  Nature  of 
Equity ;  becomes  a  supplemental  system  of  law  .  .  221 — 226 


Analysis  xvii 

D.      General  Characteristics  of  English  Law. 

Common  Law ;  its  conservatism ;  its  development  under  Edward  IV 
and  Henry  VII ;  new  forms  of  action.  Text  books  and  reports. 

Statute  law ;  characteristics  of  medieval  statutes ;  growth  of 
economic  legislation. 

Remarks  on  criminal  procedure.     History  of  the  law  of  treason 

226 — 236 

PERIOD   III. 

SKETCH  OF  PUBLIC  LAW  AT  THE  DEATH  OF  JAMES  L 
A.     Parliament. 

1.  Constitution  of  Parliament. 

(i)  House  of  Lords.  Disappearance  of  the  abbots  ;  legislation 
as  to  the  appointment  of  bishops.  Number  of  temporal  lords. 

(ii)  House  of  Commons.  Number  of  members.  Creation  of 
new  boroughs. 

The  clergy  have  practically  ceased  to  be  an  estate  of  the  realm ; 
taxes  still  voted  in  convocation,  though  confirmed  by  statute 

237—240 

2.  Privileges  of  Parliament. 

4  Privilege J  now  an  important  topic. 

(a)  Freedom  of  debate ;  Haxey's  case ;  Thorpe's  case ;  Strode's 
case;  Strickland's  case;    Wentworth's  case;    Elizabeth's  views  and 
James's;  events  of  1621. 

(b)  Freedom  from  arrest;  statute  of  1433;  Ferrer's  case;  Shirley's 
case ;  statute  of  1604. 

(c)  Punishment  for  contempt;    cases  of  Storie,  Parry,  Bland, 
Floyd 240—245 

3.  Jurisdiction  of  Parliament. 

i.e.  of  House  of  Lords,  (a)  as  a  court  of  error,  (V)  in  trial  of  peers, 
(c)  in  impeachments :  revival  of  impeachments ;  their  importance. 
Jurisdiction  as  a  *  privilege 9  of  House  of  Lords.  Acts  of  attainder 

245—246 

4.  Functions  of  the  Commons  in  granting  money        .  247 

5.  Right  to  determine  disputed  Elections. 

Claim  of  Commons  to  decide  disputes  as  to  elections ;  Nowell's 
case;  events  of  1586 247 — 248 

6.  Parliamentary  procedure. 

The  outlines  now  drawn ;  proxies  and  protests  of  the  lords ;  the 
king  in  tbe  House  of  Lords 248 


xviii  Analysis 

7.     Frequency  and  Duration  of  Parliaments. 

Long  Parliaments  of  Henry  VIII  and  Elizabeth ;  long  intervals 
without  a  session;  old  statutes  as  to  annual  Parliaments  not 
repealed.  Important  results  of  long  Parliaments  .  248 — 251 

»   B.     delation  of  the  King  to  Parliament. 

vMPHability  of  Tudor  Parliaments ;  forced  loans ;  forgiveness  of  the 
king's  debts ;  growing  independence  of  Parliaments  under  Elizabeth 
and  James. 

*  Supremacy  of  king  in  Parliament  made  apparent  by  (i)  acts  of 
attainder;  (2)  forgiveness  of  the  king's  debts;  (3)  repeated  settle- 
ments of  royal  succession;  will  of  Henry  VIII ;  (4)  'the  Lex  Regia 
of  England'  (1539)  and  its  repeal;  (5)  acts  enabling  the  king  to 
revoke  statutes;  their  repeal;  (6)  interferences  with  religion.  Sir 
Thomas  Smith  on  supremacy  of  king-in-Parliament  .  251 — 255 

But  in  many  directions  the  king's  power  is  ill  defined ;  constitu- 
tion of  the  Council  Want  of  definition  illustrated  : 

(1)  In   legislation.     The   ordaining   power;    instances  of  pro- 
clamations ;  resolution  of  the  judges  in  Mary's  reign ;  parliamentary 
protests.   Council  in  Star  Chamber  enforces  proclamations     255 — 258 

(2)  In  fiscal  matters.     The  'impositions';  Bates'  case;  Coke's 
opinion ;  difficulty  caused  by  wide  extent  of  undoubted  prerogatives, 
e.g.  as  to  debasing  the  coinage.    Benevolences.    Monopolies ;  statute 
against  them  ;  sale  of  privileges  in  the  Middle  Ages        .     258 — 261 

(3)  In   judicial   matters,      (i)    The   Court   of  Star   Chamber; 
theories  as  to  its  origin  and  legality ;  Plowden's  opinion ;  statute  of 
1562;   Coke's  opinion.     Connexion  with  the  now  well-established 
Court  of  Chancery.     Its  procedure;  arbitrary  punishments;  use  of 
torture,      (ii)    The  Council  of  the  North,      (iii)    The  Council  of 
Wales;   doubts  as  to  its  jurisdiction.     Usefulness  of  these  courts, 
owing  to  decay  of  old  local  courts,     (iv)   The  High  Commission ; 
Coke's  opinion  as  to  king's  ecclesiastical  supremacy ;  his  opinion  as 
to  the  Commission,     (v)    Commissions  of  martial  law  ;  the  Court  of 
the    Marshal   and  courts  martial;    precedents  under  Edward   IV; 
proclamations  of  1588  and  1595  ....     261 — 267 

Prerogative  and  law ;  illustrations  from  Coke's  career  ;  the  quarrel 
with  the  ecclesiastical  courts;  the  king  no  judge;  quarrel  with  the 
High  Commission;  opinion  as  to  impositions;  as  to  taking  extra- 
judicial  opinions  from  the  judges  severally;  quarrel  with  the  Chancery; 
case  of  the  commendams\  his  disgrace ;  the  four  p's  which  ruined  him. 


Analysis  xix 

Why  controversy  collects  round  the  writ  of  habeas  corpus ;  its 
history ;  statutes  as  to  bailing  prisoners.  Is  the  king's  command  a 
cause  for  imprisonment?  cThe  resolution  in  Anderson.'  Coke's 
change  of  mind. 

The  gathering  storm.     Where  is  sovereignty  ?   .        .     267—275 

C.     History  of  the  Army. 

The  feudal  levy ;  its  clumsiness ;  scutage.  The  Assize  of  Arms ; 
the  Statute  of  Winchester ;  the  village  constables.  Commissions  of 
array ;  statutes  of  Edward  III  and  Henry  IV.  No  standing  army. 
Act  of  Philip  £nd  Mary  as  to  musters;  its  repeal.  Act  of  Philip 
and  Mary  as  to  keeping  armour.  Situation  in  James'  reign. 
Difficulty  as  to  (i)  martial  law,  (2)  obtaining  money  for  payment  of 
troops.  Pressing  for  the  navy  legal  »  275 — 280 

D1.     Local  Government. 

E1.     General  Characteristics  of  Law,  especially  Criminal  Law. 
F1.     Legal  History  of  the  Reformation. 


PERIOD   IV. 

SKETCH  OF  PUBLIC  LAW  AT  THE  DEATH  OF  WILLIAM  III 
A.     Constitution  of  the  Kingship. 

theory  of  Restoration  and  Revolution.  The  Convention 
Parliament  and  the  Convention ;  were  they  Parliaments  ?  Attempts 
to  legalize  their  acts.  James'  'abdication';  its  date;  existence  of 
an  interregnum.  Was  there  a  Revolution? 

Settlement  of  the  succession  ;  the  forfeiture  clause.  New  coro- 
nation oath ;  history  of  the  old  oath ;  charges  against  Laud  of 
tampering  with  it;  quarrel  as  to  its  meaning  .  .  281 — 288 

B.     Constitution  of  Parliament. 

(i)  House  of  Lords.  Expulsion  and  restoration  of  the  bishops. 
Number  of  the  lords.  Abolition  of  the  House  in  1649. 

1  Maitland  appended  a  note  to  the  effect  that  these  subjects  would  be  treated 
*  ii  time  serves.'  Time  did  not  serve,  but  the  Legal  History  of  the  Reformation  is 
briefly  summarised  later — pp.  506 — 13. 


xx  Analysis 

(ii)  House  of  Commons.  Number  of  members  ;  new  boroughs ; 
prerogative  of  giving  members  to  towns  falls  into  disuse.  Constitu- 
tion of  Cromwell's  Parliaments.  Electoral  qualifications ;  forfeiture 
of  borough  charters.  Qualification  of  members;  the  projected 
exclusion  of  place-men  by  the  Act  of  Settlement  Disputes  as  to 
elections  decided  by  the  House 288 — 292 

C.     Frequency  and  Duration  of  Parliaments. 

Laws  of  1641,  1664,  1696.     Chronological  summary  of  sessions 

292 — 297 

D.     The  Question  of  Sovereignty. 

The  theory  of  Hobbes.  In  1625  three  claimants  for  sovereignty : 
(i)  king,  (2)  king-in-Parliament,  (3)  the  Law.  Opinion  of  the 
judges  in  the  Ship-Money  case;  the  king  above  statute.  Logical 
flaw  in  the  royalist  argument : — it  does  not  go  far  enough.  The 
claim  of  'the  Law';  Coke's  theory  as  to  void  statutes;  past  legisla- 
tion renders  it  difficult  to  maintain  this  claim ;  what  cannot  statute 
do?  The  issue  lies  between  (i)  and  (2),  and  is  decided  in  favour 
of  (2).  The  progress  of  the  dispute  may  be  seen  in  several  different 
departments  .  297 — 301 

E.     Legislation. 

Dispute  as  to  (i)  ordaining  power;  proclamation  of  Charles  I; 
abolition  of  Star  Chamber;  (2)  dispensing  power;  doubts  as  to  its 
limits ;  treatment  of  it  at  the  Revolution ;  (3)  suspending  power ; 
treatment  of  it  at  the  Revolution ;  case  of  the  Seven  Bishops 

302—306 

R     Taxation  and  Control  over  Finance. 

Under  Charles  I ;  the  impositions ;  the  forced  loan  ;  the  Petition 
of  Right;  the  ship  money;  legislation  of  1641.  Taxation  by 
James  II.  The  Bill  of  Rights. 

Appropriation  of  supplies;  events  of  1624  and  1665;  impeach- 
ment of  Danby ;  beginnings  of  the  civil  list.  The  Commons  and 
money  bills;  the  'tacking'  in  1700.  Taxation  of  the  clergy. 
Abolition  of  military  tenures,  purveyance,  preemption ;  grant  of  the 
hereditary  excise 3°6 — 311 


Analysis  xxi 

G.     Administration  of  Justice. 

Abolition  of  Star  Chamber,  High  Commission,  Councils  of  the 
North  and  of  Wales.  Restoration  of  High  Commission  by  James ; 
denounced  in  Bill  of  Rights,  Escape  of  the  Chancery. 

Change  in  the  commission  of  the  judges ;  enforced  by  Act  of 
Settlement  Independence  of  jurors ;  Bushell's  case. 

*xThe  habeas  corpus;  Darnel's  case;  Eliot's  case;  the  Act  of  1679; 
excessive  bail  forbidden. 

The  era  of  impeachments;  various  points  settled  by  decision. 
Changes  in  the  law  of  treason.  Acts  of  attainder.  Disputes  between 
the  Houses  as  to  the  jurisdiction  of  the  House  of  Lords,  (a)  as  a 
court  appeal  from  Chancery,  (b)  as  a  court  of  first  instance. 

Jurisdiction  of  the  Council  in  admiralty  and  colonial  cases 

311—320 

H.     Privilege  of  Parliament. 

(i)  Freedom  of  speech;  Eliot's  case.  (2)  Freedom  from  arrest; 
arrest  of  the  five  members ;  extent  of  the  privilege.  (3)  Power  to 
punish  for  *  contempt';  what  is  contempt?  Assertions  of  privilege 
above  law 320 — 324 

I.     Military  Affairs. 

The  commissions  of  martial  law;  billeting  of  troops;  impress- 
ment, 'the  power  of  the  militia/  Settlement  at  the  Restoration; 
growth  of  the  standing  army;  commissions  of  martial  law  under 
Charles  II  and  James  II.  Settlement  at  the  Revolution;  the  first 
Mutiny  Act;  control  of  Parliament  over  the  standing  army. 
Necessity  for  annual  sessions.  The  remodelled  militia  324 — 329 


PERIOD  V. 
SKETCH  OF  PUBLIC  LAW  AT  THE  PRESENT  DAY  (1887-8). 

Preliminary. 

i.  Though  concerned  chiefly  with  England  we  must  remember 
that  England  is  no  longer  a  state  but  is  a  part  of  the  United 
Kingdom. 

Incorporation  of  Wales  in  England.  Union  with  Scotland; 
'personal  union '  in  1603;  legislative  union  in  1707;  scheme  of  the 


xxii  Analysis 

union ;  the  '  fundamental  conditions.1  Relation  of  Ireland  to 
England  in  Middle  Ages;  Poynings1  law;  questions  as  to  authority 
of  English  statutes  and  judicial  power  of  English  House  of  Lords; 
Act  of  1719;  Act  of  1783  freeing  Irish  Parliament  from  subjection; 
union  of  1801 ;  articles  of  the  union.  No  federation  of  three 
kingdoms,  but  a  complete  merger  in  the  United  Kingdom  of  Great 
Britain  and  Ireland. 

Colonies  and  Dependencies;  general  principles  as  to  laws  in 
force  in  them;  subjection  to  legislature  of  Great  Britain  and  Ireland; 
taxation  of  the  American  colonies.  Abolition  of  slavery  and  other 
instances  of  legislation  for  colonies.  Colonial  constitutions ;  crown 
colonies  and  self-governing  colonies;  wide  powers  of  legislation  given 
to  colonial  assemblies. 

Distinguish  institutions  which  are  merely  English,  from  those 
common  to  Great  Britain  or  to  the  United  Kingdom  or  to  all  the 
king's  dominions;  e.g.  there  is  no  English  Parliament,  no  English 
nationality,  but  English  courts  of  law,  English  domicile. 

Now  it  becomes  important  to  distinguish  carefully  rules  of  law 
from  rules  which  however  punctually  observed  are  rules  of  '  positive 
morality/  'customs  or  conventions  of  the  constitution/  'constitutional 
understandings';  these  are  much  interwoven;  reason  of  this,  our 
conservatism  of  form 330 — 343 

A.     The  Sovereign  Body. 

I.  The  kingship;   statutory  settlement  of  succession;   queens, 
queens' husbands.    'The  king  never  dies.1    Coronation  oath;  declara- 
tion against  Popery;  king  must  'join  in  communion  with1  English 
church.     Royal  Marriage  Act     No  legal  mode  of  deposing  king. 

Infant  and  incapable  kings;  common  law  makes  no  provision; 
king  never  legally  incapable;  minorities  provided  for  by  occasional 
statutes;  events  of  1788  and  1810  when  George  III  was  insane; 
great  seal  used  without  king's  assent  .  .  .  343 — 346 

II.  The  House  of  Lords.     Lords  Spiritual ;  legislation  as  to  the 
new  bishoprics.     Irish   bishops  have   come   and   gone.     Mode  of 
appointing  bishops. 

Lords  Temporal;  increase  of  numbers;  representatives  oi  Scottish 
and  Irish  peers ;  mode  of  making  peers  .  .  .  347 — 351 

III.  The  House  of  Commons,     (i)  Fluctuation  in  number;  the 
Acts  of  Union 351 — 352 


Analysis  xxiii 

(2)  Qualification  of  electors  in  counties  and  boroughs.     The 
reforms  of  1832-67-84.     Present  state  of  law. 

Distribution  of  seats.  Parliamentary  and  municipal  organiza- 
tions become  distinct.  Tendency  towards  equal  electoral  districts, 
but  still  distinctions  between  borough  and  county  qualifications, 
causes  of  disqualification  ......  352 — 364 

(3)  Qualification  of  members.     History  of  parliamentary  oaths. 
History  of  *  office '  as  qualification  ....     364 — 370 

Mode  of  election ;  introduction  of  the  ballot  370 

Determination  of  disputed  elections  ,  370 

Modes  of  ceasing  to  be  a  member;  expulsion;  Wilkes'  case 

37I—372 

IV.  Frequency  and  Duration  of  Parliament.    Frequency  depends 
on  Triennial  Act  of  1694;   (N.B.  Act  of  1664  repealed  in  1887); 
duration  on  Septennial  Act  of  1 7 1 5,    Why  annual  sessions  necessary. 
Legislation  as  to  dissolution  by  demise  of  Crown    .         .     373 — 374 

V.  Privileges  of  Parliament,    (i)  Freedom  of  speech;  exception 
out  of  ordinary  law  as  to  defamation ;  Stockdale  v.  Hansard,  Wason 
v.    Walter.     Reporting.     (2)    Freedom   from  arrest;    now   of  little 
importance.     (3)   Power  of  punishing  for  contempt ;   treatment  of 
this  power  by  courts  of  law ;  actual  use  of  it  .         .     374 — 380 

VI.  The  Work  of  Parliament.     Other  functions  besides  passing 
statutes;  inquiry  and  criticism;  examination  of  witnesses.    Essentials 
of  a  statute;   each  House  has  large  powers  of  regulating  its  own 
procedure;  questions  as  to  whether  both  Houses  have  really  consented 
to  what  on  its  face  professes  to  be  a  statute. 

The  omnicompetence  of  statute ;  it  may  not  be  a  *  law J  in  the 
jurists*  sense;  instances  of  particular  commands  given  by  statute. 
In  the  eighteenth  century  Houses  attempt  to  govern  as  well  as  legis- 
late by  statute.  In  the  nineteenth  century  vast  new  powers  have 
been  given  to  ministers  and  law  courts,  and  Parliament  interferes  less 
with  particulars ;  but  the  power  exists  and  is  exercised,  e.g.  disfran- 
chisement  by  statute  of  A,  B,  and  C,  corrupt  voters,  also  Acts  of 
Indemnity,  also  appropriation  of  supplies  .  .  380 — 387 

B.     The  *  Crown '  and  the  '  Government' 

Difficulty  of  dealing  with  this  subject  owing  to  the  growth  of 
1  constitutional  understandings/  maintenance  of  ancient  forms,  and 
unwillingness  to  expressly  take  power  from  the  king  .  387 — 388 


xxiv  Analysis 

Historical  fieview.  Revolution  settlement;  large  prerogatives 
left  to  William  III  which  he  was  expected  to  exercise.  Positi^pof 
Privy  Council  and  growth  of  Cabinet.  How  the  Cabinet  was  flfally 
possible.  Attempt  (1700)  to  stop  by  statute  the  growth  of  an  inner 
council;  repealed  1705  ......  387 — 390 

History  of  the  great  officers;  chancellor,  treasurer,  keeper  of 
privy  seal,  president  of  council,  secretaries  of  state,  chancellor  of 
exchequer,  admiral;  treasury  and  admiralty  in  commission.  These  or 
some  of  these  form  an  irregular  inner  council,  with  whose  concurrence 
a  king  can  exercise  prerogatives ;  they  have  the  seals ;  importance  of 
the  seals  of  office;  no  need  to  summon  other  councillors  390 — 394 

,  Cabinet  government  of  modern  type  slowly  evolved  ;  king  ceases 
to  be  present  at  cabinet  meeting ;  solidarity  of  cabinet  slowly 
established  (i)  political  unanimity,  (2)  common  responsibility  to 
Parliament  (though  not  to  the  law),  (3)  submission  to  a  '  Prime 
Minister.'  Gradual  retirement  of  king  behind  his  Ministers,  who  are 
now  expected  to  be  in  Parliament;  he  ought  to  take  their  advice,  and 
choose  them  in  accordance  with  wishes  of  Parliament  (later,  of  House 
of  Commons).  All  this  *  extra-legal.'  King's  legal  powers  have  not 
been  diminished;  on  the  contrary  since  the  establishment  of 
ministerial  system  have  vastly  grown  owing  to  modern  statutes. 
King's  own  sign  manual  or  consent  given  at  a  (formal)  meeting  of 
Privy  Council  necessary  for  countless  purposes.  Other  powers 
given  to  this  or  that  high  officer  (cabinet  minister).  Distinguish 
prerogatives  (i.e.  common  law  powers)  from  statutory  powers  of  king 

394—400 

Present  State,  (i)  Necessary  existence  of  Privy  Council.  (2)  Its 
legal  constitution.  (3)  And  actual  composition.  (4)  King  may 
consult  such  privy  councillors  as  he  pleases  and  this  is  legally  a 
meeting  of  the  Privy  Council.  (5)  Large  powers  of  king  in  Council. 
(6)  Necessary  that  king  should  have  certain  high  officers  (e.g.  two 
Lords  of  the  treasury,  otherwise  he  cannot  lawfully  get  the  money 
that  Parliament  has  voted).  (7)  Customary  composition  of  the 
'Cabinet'  out  of  these  high  officers;  as  a  body  it  has  no  legal  powers. 
(8)  But  almost  every  member  has  large  legal  powers.  (9)  Customary 
composition  of  'Ministry.'  (10)  Solidarity  of  Ministry,  maintained 
by  customary  rules  as  to  resignation  and  acceptance  of  office,  but 
not  recognized  by  law;  ultimate  sanction  a  refusal  of  supplies, 
(n)  Legal  tenure  of  high  offices  during  king's  pleasure.  Choice  of 
Prime  Minister.  (12)  Relation  of  Cabinet  to  the  Privy  Council; 


Analysis  xxv 

formal  meetings  of  Privy  Council  (i.e.  of  king  with  a  few  ministers 
and  sometimes  a  royal  duke,  or  officer  of  household),  at  which 
king's  powers  are  exercised  in  accordance  with  policy  of  Cabinet. 
(13)  Many,  but  not  all,  royal  powers  must  be  exercised  by  Order  in 
Council;  but  every  (or  almost  every)  exercise  of  royal  power  requires 
authentication  by  some  high  officer.  Form  of  an  Order  in  Council. 
Classification  of  delegated  powers  ....  400 — 407 

Of  some  of  the  high  officers  and  their  legal  powers,  (i)  The 
Lords  of  the  Treasury,  (2)  the  Secretaries  of  State;  large  legal 
powers  in  governing  England  of  (Home)  Secretary.  (5)  Board  of 
Trade.  (6)  Local  Government  Board.  (7)  Education  Department, 
etc.  Illustration  of  actual  working  of  government  system  407 — 414 

Object  of  illustrating  these  statutory  powers  : — Blackstone's  state- 
ment that  the  high  officers  (e.g.  secretaries)  have  few  (if  any)  legal 
powers  of  their  own,  has  become  utterly  untrue,  though  still  repeated 
by  text  writers.  The  old  theory  (never  very  true)  that  *  legislative 
power  is  in  king  and  Parliament,  executive  power  in  king'  now 
requires  serious  modifications.  Many  powers  of  great  importance 
are  given  by  statute  not  to  the  king  but  to  some  high  officer — e.g. 
power  of  making  rules  for  the  government  of  police  given  to  Secretary 
of  State.  The  requisite  harmony  between  those  who  have  these 
powers  is  obtained  by  the  (extra-legal)  organization  of  the  Cabinet. 
Our  law  now  knows  not  so  much  'the  executive  power'  as  many 
executive  (better,  governmental)  powers.  This  is  obscured  by  talk 
about  'the  Crown';  'the  Crown'  is  often  a  cover  for  ignorance;  the 
king  has  power.}  and  the  high  officers  have  powers,  but  the  crown 
lies  in  the  Tovvcr. 

Difficulties  as  to  limits  of  king's  prerogative  powers;  because 
instead  of  them  new  statutory  powers  are  used;  but  a  prerogative 
does  not  become  obsolete  by  disuse  and  the  clear  words  of  a  statute 
are  necessary  to  take  it  away  .  415 — 421 

.  f.^       C.     Classification  of  the  Powers  of  the  Crown. 

Shall  deal  with  many  in  subsequent  sections;  but  here  (i)  recall 
powers  relating  to  constitution,  assembling  and  dissolving  of  Parlia- 
ment and  turning  bills  into  statute;  (not  correct  to  speak  of  king 
as  having  a  *  veto  * ;  he  must  actively  assent ;  assent  last  refused  by 
Anne);  (2)  note  power  of  making  war  or  peace;  question  as  to 
power  of  ceding  territory ;  power  to  make  treaties,  but  treaty  does 
not  alter  English  law;  illustration,  extradition  treaties;  ambassadors; 
aliens;  (3)  appointment  of  offices  .  •  •  «  •  422 — 430 


xx  vi  Analysis 

D.     The  Fiscal  System. 

Retrospect:  the  Crown  lands  and  king's  private  estates,  the 
national  revenue  and  king's  private  revenue,  gradual  establishment 
of  these  distinctions.  The  'ordinary'  and  Extraordinary*  revenue; 
decline  in  importance  of  former.  History  of  hereditary  excise  and 
civil  list;  a  king  with  a  salary 430 — 438 

History  of  Consolidated  Fund  and  of  National  Debt.  Charges 
on  Consolidated  Fund.  Present  sources  of  revenue.  Most  taxes 
imposed  by  permanent  Acts :  but  supply  granted  only  from  year  to 
year.  Function  of  House  of  Commons  in  granting  and  appropriating 
supplies.  How  supplies  expended;  necessity  of  royal  sign  manual; 
method  of  voting  supplies 438 — 447 

E.     The  Military  System. 

Army.  Annual  Mutiny  Acts;  Army  Act  1881  ;  nature  of  its 
contents;  *  Military  law';  prerogative  of  making  articles  of  war; 
billeting  and  impressment  of  carts ;  terms  of  soldiers'  service  how 
far  fixed  by  statute;  conscription  in  the  eighteenth  century;  the 
command  of  the  army.  ......  447 — 454 

Militia.  The  'constitutional  force';  models  of  1662,  1757, 
1786, 1802,  1853;  suspension  of  the  ballot;  present  plan  455  —  459 

Navy.  Contrast  between  treatment  of  Army  and  Navy ;  Acts  of 
1661,  1749,  1866.  Pressing  sailors  ....  460 — 462 

F.     Administration  of  Justice. 

Put  on  one  side  Judicial  Committee  of  Privy  Council;  its  great 
importance  .,......,  462 — 464 

a.  System  of  Civil  Courts.     The  great  changes  of  the  nineteenth 
century.     The  (new)  County  Courts ;  the  Court  of  Chancery ;  the 
domain  of  modern  equity;  Chancery  procedure;  fusion  of  Equity 
and  Common  Law;  the  High  Court  of  Justice;  the  High  Court  of 
Appeal ;  the  House  of  Lords. 

Court  of  Appeal,  House  of  Lords.  General  rules  a:s  to  their 
competence.  Present  relation  of  Equity  to  Law  .  .  464 — 473 

b.  System  of  Criminal  Courts,     (i)  Courts  of  Summary  Juris- 
diction formed  by  justices  of  peace.    (2)  Quarter  Sessions.    (3)  High 
Court.     Writs  of  error  to  (4)  Court  of  Appeal  and  (5)  House  of 


Analysis  xxvii 

Lords.  (6)  Court  for  Crown  Cases  Reserved.  Trial  of  peers  and 
impeachments  before  the  House  of  Lords.  Some  notes  on  Criminal 
Law .  473—478 

c.  Government  and  Justice: — (i)  Independence  of  judges  secured; 
(2)  king  has  no  powers  over  Civil  Justice  ;  but  (3)  has  legally  large 
powers  over  Criminal  Justice;  power  of  pardon;  power  to  stop 
criminal  proceedings ;  (4)  *  the  king  can  do  no  wrong ' ;  meaning 
of  this;  petitions  of  right;  (5)  king's  officers  can  be  sued^nd  prose- 
cuted in  ordinary  way  even  for  official  acts  ,  .  y/T  478 — 484 

G.     The  Police  System. 

Continued  decline  and  fall  of  sheriff;  his  present  position.  The 
parish  constables;  Act  of  1842  ;  special  constables.  The  new  con- 
stabulary; its  government.  Position  of  police  constable;  law  of 
arrest;  constant  increase  of  police  constable's  statutory  powers. 
Suppression  of  tumults ;  Riot  Act;  use  of  military  force  485 — 492 

H.     Social  Affairs  and  Local  Government. 

Only  possible  to  hint  at  the  existence  of  this  great  field  of  law 
which  constantly  grows  wider;  but  at  least  its  existence  should  be 
known. 

Organs  of  local  government  :— 

(1)  Justices  of  Peace 493 — 495 

(2)  Municipal  corporations;  the  reform  of  1835      .  495 — 497 

(3)  Poor  Law  Guardians;  the  reform  of  1834          .  497 — 498 

(4)  Sanitary  authorities;  acts  of  1848  and  1875       .  498 

(5)  School  Boards,  1870.    Progress  of  democratic  representative 
government;  bill  (Act?)  of  1888  for  County  Councils     .     499 — 501 

The  new  duties  thus  cast  on  the  Englishman  :  some  of  which  are 
active  duties,  e.g.  to  register  child's  birth,  have  it  vaccinated,  and 
sent  to  public  elementary  school.  Also  notice  Expropriation  Acts. 

501—506 

J.     The  Church. 

Medieval  theory  of  church  and  state;  a  denial  of  ' sovereignty,' 
Jurisdiction  of  ecclesiastical  courts ;  temporal  effects  of  excom- 
munication; the  Canon  Laws;  statutes  against  heretics.  Endowments, 
not  01  *  the  church/  but  of  churcaes.  The  Reiurmation  506—511 


xxviii  Analysis 

Subjection  of  church  to  king  and  Parliament     Legislation  as  to 
dogma  and  ritual.     History  of  convocations  ;  their  impotence 


History  of  attempts  to  enforce  conformity  on  Catholics  and 
Protestant  Dissenters  ;  Blackstone's  account  of  laws  against  sectaries 
and  papists.  History  of  toleration.  Present  state  of  the  case; 
remaining  religious  disabilities;  laws  against  Jesuits;  heresy  an 
ecclesiastical  offence.  Present  condition  and  powers  of  ecclesiastical 
courts.  Legal  position  of  clerk  in  English  orders  contrasted  with 
that  of  catholic  priest  and  dissenting  minister  ;  the  former  a  '  status  '  ; 
1  the  church  '  not  a  corporation,  nor  even  a  definite  body  of  persons 

514—526 

K.     The  Definition  of  Constitutional  Law. 

Such  terms  as  'public/  'constitutional,'  'administrative1  law, 
not  technical  in  England;  Austin's  use  of  them,  and  Holland's. 
Theory  that  constitutional  law  deals  with  structure,  administrative 
with  function;  difficulty  of  taking  this  as  outline  for  a  code. 
Interdependence  of  all  parts  of  the  law;  e.g.  main  outlines  of 
'constitutional  law  '  of  Middle  Ages  are  determined  by  'real  property 
law';  constitutional  struggles  of  seventeenth  century  not  to  be 
understood  without  knowledge  of  criminal  procedure  .  526  —  539 


PERIOD    I. 

ENGLISH  PUBLIC  LAW  AT  THE  DEATH  OF  &DWARD 

THE  FIRST, 

A.      General  cJiaracteristics  of  English  law  and  revieiv 
of  legislation. 

i.     Before  1066. 

The  oldest  English  laws  that  have  come  down  to  us  are 
those  of  Ethelbert,  king  of  Kent,  and  we  have  good  reason  for 
believing  that  they  were  the  first  English  laws  that  were  ever 
put  into  writing.  Ethelbert  became  king  in  560  and  died  in 
6 1 6.  The  laws  that  we  have  must  have  been  published  after 
he  had  received  the  Christian  faith  ;  we  may  attribute  them  to 
the  year  600  or  thereabouts.  Thus  the  history  of  English 
law  may  be  said  to  begin  just  about  the  time  when  the  history 
of  Roman  law — we  will  not  say  comes  to  an  end,  for  in 
a  certain  sense  it  has  never  come  to  an  end — but  comes  to 
a  well  marked  period : — the  reign  of  Ethelbert  overlaps  the 
reign  of  Justinian.  Not  only  are  Ethelbert's  the  earliest  English 
laws,  but  they  seem  to  be  the  earliest  laws  ever  written  in  any 
Teutonic  tongue.  It  is  true  that  on  the  continent  the  German 
nations  which  overwhelmed  the  Roman  Empire  had  already 
felt  the  impulse  to  put  their  laws  in  writing ;  the  Lex  Salica> 
for  example,  the  law  of  the  Salian  Franks,  is  considerably 
older  than  anything  that  we  Englishmen  have  to  show,  but  it 
is  written  in  Latin,  and  for  centuries  Latin  continued  to  be 
the  legal  language  of  the  new  kingdoms.  But  our  earliest 
laws  are  written  in  English,  or  Anglo-Saxon,  and  until  the 
Norman  Conquest  all  laws  were  written  in  English,  though 

M.  .  I 


2  Constitutional  History  PERIOD 

Latin  was  commonly  used  for  many  legal  documents,  con- 
veyances of  land  and  the  like.  Seemingly  it  was  the  contact 
with  Roman  civilization  in  the  form  of  Christianity  which 
raised  the  desire  for  written  laws.  Beda,  who  died  in  735, 
says  that  Ethelbert  put  his  laws  in  writing  'juxta  exempla 
Romanorum/  It  is  possible  that  some  collection  of  ecclesi- 
astical canons  served  as  a  model.  We  do  well  to  remember 
that  the  oldest  laws  that  we  have,  however  barbarous  they 
may  seem,  are  none  the  less  Christian  laws.  '  God's  property 
and  the  church's  1 2-fold.  A  bishop's  property  n-fold.  A 
priest's  property  9-fold.  A  deacon's  property  6-fold.  A  clerk's 
property  3-fold': — this  is  the  first  utterance  of  English  law. 
This  it  is  well  to  remember,  for  it  should  prevent  any  glib  talk 
about  primitive  institutions  :  Teutonic  law  (for  what  is  true  of 
England  is  true  also  of  the  continent)  when  it  is  first  set  in 
writing  has  already  ceased  to  be  primitive ;  it  is  already 
Christian,  and  so  close  is  the  connection  between  law  and 
religion,  that  we  may  well  believe  that  it  has  already  under- 
gone a  great  change. 

We  have  two  more  sets  of  Kentish  laws,  a  set  from  Hlothar 
and  Eadric,  who  seem  to  have  been  joint  kings  of  the 
Kentings,  which  we  may  date  in  680  or  thereabouts,  and  a  set 
from  Wihtraed,  which  comes  from  700  or  thereabouts.  Wessex 
takes  up  the  tale  ;  in  690  or  thereabouts  king  Ine,  with  the 
counsel  and  consent  of  the  wise,  published  a  set  of  laws. 
Then  we  have  a  gap  of  two  centuries,  the  greatest  gap  in  our 
legal  history.  The  laws  of  Alfred,  which  come  next  in  order, 
may  be  attributed  to  890  or  thereabouts.  They  show  us  that 
during  the  two  last  centuries  there  had  been  no  great  change 
in  the  character  of  law  or  the  legal  structure  of  society. 
Alfred  disclaims  all  pretension  of  being  an  innovator,  he  will 
but  set  down  the  best  principles  that  he  has  been  able  to  find 
in  the  laws  of  Ethelbert,  of  Ine  and  of  the  Mercian  king, 
Offa.  The  laws  of  Offa  of  Mercia,  who  died  in  796,  have  not 
come  down  to  us. 

Beginning  with  Alfred's  we  now  have  a  continuous  series 
of  laws  covering  the  whole  of  the  tenth  century  and  extend- 
ing into  the  eleventh,  laws  from  Edward  the  Elder,  ^Ethelstan, 
Edmund,  Edgar,  and  Ethelred  ;  the  series  is  brought  to  an  end 


I  Anglo-Saxon  Dooms  3 

by  a  long  and  comprehensive  set  of  laws  coming  from  our 
great  Danish  king,  Canute.  We  have  no  one  law  that  can  be 
ascribed  to  Edward  the  Confessor,  who,  however,  in  after  days 
acquired  the  fame  of  having  been  a  great  legislator. 

These  Anglo-Saxon  laws  or  dooms — as  they  call  them- 
selves— after  having  lain  hid  in  MS.  for  several  centuries,  were 
dug  up  in  the  sixteenth  century  as  antiquarian  curiosities. 
Lambard  published  some  of  them  in  1568  under  the  title 
Archaionomia.  In  1840  they  were  published  for  the  Record 
Commissioners  with  a  modern  English  translation  under  the 
title  Ancient  Laivs  and  Institutes  of  England  \  they  were  again 
published  in  1865  with  a  German  translation  by  Dr  Reinhold 
Schmid1.  These  editions  contain,  besides  the  dooms,  a  few 
brief  statements  of  customary  law,  forms  of  oaths  and  the  like. 
The  whole  material  can  be  printed  in  about  160  octavo  pages. 
We  have  nothing  from  this  period  that  can  be  called  a  treatise 
on  law,  and  we  have  but  very  few  accounts  of  litigation.  On  the 
other  hand  we  have  a  large  number  of  private  legal  documents, 
conveyances  of  lands,  or  land  books  as  they  were  called, 
leases,  wills  and  so  forth  ;  these  were  collected  and  printed  by 
J.  M.  Kemble  in  his  Codex  Diplomaticus  ^Evi  Saxonici. 

I  have  spoken  of  '  sets  of  laws '  and  have  refrained  from 
using  the  word  code.  Once  or  twice  it  would  seem  as  if  an 
attempt  had  been  made  to  state  the  existing  law  ;  but  in 
general  these  laws  seem  to  be  new  laws,  additions  to  the  law 
that  is  already  in  force ;  we  may  compare  them  to  our 
modern  statutes  and  lil^e  our  statutes  they  pre-suppose  a  body 
of  existing  law.  I  will  not  say  that  they  pre-suppose 
'  common  law/  because  I  think  that  the  phrase  implies  law 
common  to  the  whole  kingdom,  and  how  much  law  there  was 
common  to  the  whole  kingdom  in  the  days  before  the  Norman 
Conquest  is  a  very  difficult  question.  In  the  twelfth  century, 
some  time  after  the  Conquest,  it  was  the  established  theory 
that  England  was  or  had  been  divided  between  three  laws, 
the  West-Saxon,  the  Mercian  and  the  Danish.  The  old 
laws  themselves  notice  this  distinction  in  a  casual  way ;  but 
we  have  little  means  of  telling  how  deep  it  went.  It  is  highly 

1  The  best  edition  is  now  that  of  F.  Liebermann,  Die  Gesctze  dtr  Augelsachsen^ 
2  vols.,  Halle,  1903  and  1906. 


I  —  2 


4  Constitutional  History  PERIOD 

probable,  however,  that  a  great  variety  of  local  customs  was 
growing  up  in  England,  when  the  Norman  Conquest  checked 
the  growth.  Originally  there  may  have  been  considerable 
differences  between  the  laws  of  the  various  tribes  of  Angles, 
Saxons  and  Jutes  that  invaded  Britain,  and  the  Danes  must 
have  brought  with  them  a  new  supply  of  new  customs.  But 
this  would  not  be  all ;  the  courts  of  justice,  as  we  shall 
presently  see,  were  local  courts,  courts  of  shires  and  of 
hundreds  ;  resort  to  any  central  tribunal,  to  the  king  and  his 
wise  men,  seems  to  have  been  rare,  and  this  localization  of 
justice  must  have  engendered  a  variety  of  local  laws.  Law 
was  transmitted  by  oral  tradition  and  the  men  of  one  shire 
would  know  nothing  and  care  nothing  for  the  tradition  of 
another  shire. 

The  written  laws  issued  by  the  king  and  the  wise  cover 
but  a  small  part  of  the  whole  field  of  law.  They  deal  chiefly 
with  matters  of  national  importance,  in  particular  with  the 
preservation  of  the  peace.  To  keep  the  peace  is  the  legis- 
lator's first  object,  and  is  not  easy.  The  family  bond  is  strong; 
an  act  of  violence  will  too  often  lead  to  a  blood  feud,  a  private 
war.  To  force  the  injured  man  or  the  slain  man's  kinsfolk  to 
accept  a  money  composition  instead  of  resorting  to  reprisals 
is  a  main  aim  for  the  law  giver.  Hence  these  dooms  often 
take  the  form  of  tariffs — so  much  is  to  be  paid  for  slaying  an 
eorl,  so  much  for  a  ceorl,  so  much  for  a  broken  finger,  so  much 
for  a  broken  leg.  Another  aim  is  to  make  men  mindful  of 
their  police  duties,  to  organize  them  for  the  pursuit  of  robbers 
and  murderers,  to  fine  them  if  they  neglect  such  duties.  But 
of  what  we  may  call  private  law  we  hear  little  or  nothing — of 
property,  contract  or  the  like.  It  is  easy  to  ask  very  simple 
questions  about  inheritance  and  so  forth  to  which  no  certain 
answer  can  be  given,  and  like  enough  there  were  many 
different  local  customs.  There  was  as  yet  no  body  of  pro- 
fessional lawyers,  law  was  not  yet  a  subject  for  speculation  ; 
it  was  the  right  and  duty  of  the  free  man  to  attend  the  court 
of  his  hundred  and  his  shire,  and  to  give  his  judgment  there. 
This  must  not,  however,  lead  us  to  believe  that  law  was  a 
simple  affair,  that  it  consisted  of  just  the  great  primary  rules 
of  what  we  think  natural  justice.  In  all  probability  it  was 


I  Roman  influence  5 

very  complicated  and  very  formal ;  exactly  the  right  words 
must  be  used,  the  due  solemnities  must  be  punctually  per- 
formed. An  ancient  popular  court  with  a  traditional  law  was 
no  court  of  equity  ;  forms  and  ceremonies  and  solemn  poetical 
phrases  are  the  things  which  stick  in  the  popular  memory  and 
can  be  handed  down  from  father  to  son. 

A  great  deal  has  been  done  by  modern  scholars  and  a 
great  deal  more  may  yet  be  done  towards  reconstructing  the 
Anglo-Saxon  legal  system.  Besides  the  primary  sources  of  in- 
formation that  I  have  mentioned,  the  evidence  of  Caesar  and 
Tacitus,  the  kindred  laws  of  other  German  tribes  and  books 
written  in  England  after  the  Conquest  may  be  cautiously 
employed  for  the  purpose :  but  for  reasons  already  given  I 
do  not  think  that  this  matter  can  be  profitably  studied  by 
beginners ;  we  must  work  backwards  from  the  known  to  the 
unknown,  from  the  certain  to  the  uncertain,  and  when  we  see 
very  confident  assertions  about  the  details  of  Anglo-Saxon 
law  we  shall  do  well  to  be  sceptical.  One  point  how- 
ever of  considerable  importance  seems  pretty  clear,  namely, 
that  the  influence  of  Roman  jurisprudence  was  hardly  felt. 
There  is  no  one  passage  in  the  dooms  which  betrays  any 
knowledge  of  the  Roman  law  books.  German  scholars  are 
in  the  habit  of  appealing  to  these  Anglo-Saxon  dooms  as 
to  the  purest  monuments  of  pure  Germanic  law;  they  can 
find  nothing  so  pure  upon  the  continent.  But  we  must 
not  exaggerate  this  truth.  Roman  jurisprudence  did  not 
survive  in  Britain,  but  the  traditions  of  Roman  civilization 
were  of  great  importance.  The  main  force  which  made  for 
the  improvement  of  law  was  the  church,  and  the  church 
if  it  was  Catholic  was  also  Roman.  Thus,  for  example,  at 
a  quite  early  time  we  find  the  Anglo-Saxons  making  wills. 
This  practice  we  may  safely  say  is  due  to  the  church: — 
the  church  is  the  great  recipient  of  testamentary  gifts.  We 
may  further  say  that  the  will  is  a  Roman  institution ;  that 
these  Anglo-Saxons  would  not  be  making  wills,  if  there 
had  been  no  Rome,  no  world-wide  Roman  Empire;  but  of 
any  knowledge  of  the  Roman  law  of  wills,  even  of  so  much 
of  it  as  is  contained  in  the  Institutes  we  may  safely  acquit 
them.  Suppose  a  party  of  English  missionaries  to  go 


6  Constittttional  History  PERIOD 

preaching  to  the  heathen,  they  would  inevitably  carry  with  them 
a  great  deal  of  English  law  although  they  might  be  utterly 
unable  to  answer  the  simplest  examination  paper  about  it ; 
for  instance  they  would  know  that  written  wills  can  be  made, 
and  they  would  think  that  written  wills  should  take  effect, 
though  they  might  well  not  know  how  many  witnesses  our 
law  requires,  or  whether  a  will  is  revoked  by  marriage.  In 
some  such  way  the  church,  Catholic  and  Roman,  carried  with 
it  wherever  it  went  the  tradition  of  the  older  civilization, 
carried  with  it  Roman  institutions,  such  as  the  will,  but  in 
a  popularized  and  vulgarized  form. 

I  have  spoken  of  the  Anglo-Saxon  dooms  as  the  dooms  of 
this  king  and  of  that,  but  we  ought  to  observe,  even  in  passing, 
and  though  this  matter  must  come  before  us  again,  that  no 
English  king  takes  on  himself  to  legislate  without  the  counsel 
and  consent  of  his  wise  men.  Legislative  formulae  are  of 
great  importance  to  us,  for  we  have  to  trace  the  growth  of  that 
form  of  words  in  which  our  Queen  and  Parliament  legislate 
for  us  to-day.  Here  is  the  preface  of  the  laws  of  Wihtraed  : 
*  In  the  reign  of  the  most  clement  king  of  the  Kentish  men, 
Wihtraed,  there  was  assembled  a  deliberative  convention  of 
the  great  men:  there  was  Birhtwald,  Archbishop  of  Britain, 
and  the  fore-named  king,  and  the  Bishop  of  Rochester, 
Gybmund  by  name ;  and  every  degree  of  the  church  of  that 
province  spoke  in  unison  with  the  obedient  people.  There  the 
great  men  decreed  these  dooms  with  the  suffrages  of  all,  and 
added  them  to  the  customary  laws  of  the  Kentish  men'; — and 
so  on  until  the  end  of  the  period,  until  the  laws  of  Canute: 
"This  is  the  ordinance  that  king  Canute,  king  of  all 
England,  and  king  of  the  Danes  and  Norwegians,  decreed, 
with  the  counsel  of  his  '  witan '  to  the  honour  and  behoof  of 
himself." 

ii.     1066-1154. 

The  Norman  Conquest  is  an  event  of  the  utmost  import- 
ance in  the  history  of  English  law ;  still  we  must  not  suppose 
that  English  law  was  swept  away  or  superseded  by  Norman 
law.  We  must  not  suppose  that  the  Normans  had  any  com- 
pact body  of  laws  to  bring  with  them.  They  can  have  had  but 


I  The  Norman  Conquest  j 

very  little  if  any  written  law  of  their  own  ;  in  this  respect  they 
were  far  behind  the  English. 

Since  912  these  Norsemen  had  held  a  corner  of  what  had 
once  formed  a  part  of  the  great  Frank  kingdom;  but  their 
dukes  had  been  practically  independent,  owing  little  more 
than  a  nominal  allegiance  to  the  kings  of  the  French.  They 
had  adopted  the  religion  and  language  of  the  conquered,  and 
we  must  believe  that  what  settled  law  there  was  in  Normandy 
was  rather  Prankish  than  Norse.  They  were  an  aristocracy 
of  Scandinavian  conquerors  ruling  over  a  body  of  Romance- 
speaking  Kelts.  No  one  of  their  dukes  had  been  a  great 
legislator.  Such  written  law  as  there  was  must  have  already 
been  of  great  antiquity,  the  Lex  Salica  and  the  capitularies  of 
the  Prankish  kings,  and  how  far  these  were  really  in  force,  we 
cannot  say.  The  hold  of  the  dukes  upon  their  vassals  had 
been  precarious ;  but  probably  some  traditions  of  strong  and 
settled  government  survived  from  the  times  of  the  Carlovings. 
For  instance,  that  practice  of  summoning  a  body  of  neighbours 
to  swear  to  royal  and  other  rights  which  is  the  germ  of  trial 
by  jury,  appears  in  England  so  soon  as  the  Normans  have 
conquered  the  country,  and  it  can  be  clearly  traced  to  the 
courts  of  the  Prankish  kings. 

There  is  no  Norman  law  book  that  can  be  traced  beyond 
the  very  last  years  of  the  twelfth  century ;  there  is  none  so  old 
as  our  own  Glanvill.  Really  we  know  very  little  of  Norman  law 
as  it  was  in  the  middle  of  the  tenth  century.  It  cannot  have 
been  very  unlike  the  contemporary  English  law — the  Prankish 
capitularies  are  very  like  our  English  dooms,  and  the  East  of 
England  was  full  of  men  of  Norse  descent.  We  must  not 
therefore  think  of  William  as  bringing  with  him  a  novel 
system  of  jurisprudence. 

The  proofs  of  the  survival  of  English  law  can  be  briefly 
summarised.  In  the  first  place  one  of  the  very  few  legislative 
acts  of  William  the  Conqueror  of  which  we  can  be  certain,  is 
that  he  confirmed  the  English  laws.  '  This  I  will  and  order 
that  all  shall  have  and  hold  the  law  of  king  Edward  as  to 
lands  and  all  other  things  with  these  additions  which  I  have 
established  for  the  good  oi  the  English  people/  Then  again, 
after  the  misrule  of  Rufus,  Henry  I  on  his  accession  (uoo) 


8  Constitutional  History  PERIOD 

confirmed  the  English  law :  '  I  give  you  back  king  Edward's 
law  with  those  improvements  whereby  my  father  improved  it 
by  the  counsel  of  his  barons.1     Secondly,  these  confirmations 
of  Edward's  law  seem  to  have  set  several  different  persons  on 
an  attempt  to  restate  what  Edward's  law  had  been.     We  have 
three  collections  of  laws  known  respectively  as  the  Leges 
Edwardi  Confessoris,  Leges    Willelmi  Primi,  Leges  Henrici 
Primi.    These  are  apparently  the  work  of  private  persons ;  we 
cannot  fix  the  date  of  any  of  them  with  any  great  certainty. 
The  most  valuable  is  the  Leges  Henrici  Primi,  which  has  been 
ascribed  to  as  late  a  date  as  the  reign  of  Henry  II,  but  which 
the  most  recent  investigations  assign  to  that  of  Henry  I.     It 
is  a  book  of  some  size,  very  obscure  and  disorderly.     The 
author  has  borrowed  freely  from  foreign  sources,  from  the  Lex 
Salica,   the   capitularies   of  the    Prankish   kings,   and    from 
collections  of  ecclesiastical  canons — one  little  passage  has  been 
traced  to  the  Theodosian  Code  ;  but  the  main  part  of  the  book 
consists  of  passages  from  the  Anglo-Saxon  dooms  translated 
into  Latin,  and  the  author  evidently  thinks  that  these  are,  or 
ought  to  be,  still  regarded  as  the  law  of  the  land.    The  picture 
given  us  by  this  book  is  that  of  an  ancient  system  which  has 
undergone  a  very  severe  shock.     So  the  compiler  of  the  Leges 
Edwardi  Confessoris  has  borrowed  largely  from  the  old  dooms. 
His  book  did  much  to  popularise  the  notion  that  the  Confessor 
was  a  great  legislator.     In  after  times  he  became  the  hero  of 
many  legal  myths ;  but  as  already  said  there  is  no  one  law 
that  can  be  attributed  to  him.     The  demand  for  Edward's  law 
which  was  conceded  by  William  and  by  Henry  I  was  not 
a  demand  for  laws  made  by  Edward  ;  it  was  merely  a  demand 
for  the  good  old  law,  the  law  which  prevailed  here  before 
England  fell  under  the  domination  of  the  Conqueror1.   Thirdly, 
Domesday  book,  the  record  of  the  great  survey  made  in  the 
years  1085-6 — the  greatest  legal  monument  of  the  Conqueror's 
reign — shows  us  that  the  Norman  landowners  were  conceived 
as  stepping  into  the  exact  place  of  the  English  owners  whose 
forfeited  lands  had  come  to  their  hands ;  the  Norman  repre- 

1  For  a  fuller  account  of  the  law-books  of  the  Norman  period  see  Pollock  and 
Maitland,  History  of  English  Law,  2nd  edn.  vol.  I,  pp.  97 — no.  Stubbs, 
Lectures  oil  Early  English  Hislury,  37  —  133. 


I  Norman  Legislation  9 

sents  an  English  anteccssor  whose  rights  and  duties  have 
fallen  upon  him.  The  same  conclusion  is  put  before  us  by  the 
charters  of  the  Norman  kings,  the  documents  whereby  they 
grant  lands  to  their  followers.  It  is  in  English  words  that 
they  convey  jurisdictions  and  privileges  :  the  Norman  lord  is 
to  have  sac  and  soc,  thol  and  theam,  infangthief  and  outfang- 
thief, — rights  which  have  been  enjoyed  by  Englishmen,  rights 
which  can  only  be  described  in  the  English  language. 

At  the  same  time  it  must  be  admitted  that  there  has  been 
a  large  infusion  of  Norman  ideas.  Occasionally,  though  but 
rarely,  we  can  place  our  finger  on  a  rule  or  an  institution  and 
say  '  This  is  not  English/  Such  is  the  case  with  trial  by 
battle,  such  is  the  case  with  the  sworn  inquest  of  neighbours 
which  comes  to  be  trial  by  jury.  More  often  we  can  say  that 
a  new  idea,  a  new  theory,  has  been  introduced  from  abroad, 
this  as  we  shall  hereafter  see  is  the  case  with  what  we  call 
feudalism.  But  still  more  often  we  can  only  say  that  a  new 
meaning,  a  new  importance,  has  been  given  to  an  old  institu- 
tion. The  valuable  thing  that  the  Norman  Conquest  gives  us 
is  a  strong^kingship  which  makes  fbjrjriational  unity. 

No  one  of  the  Norman  kings,  among  whom  we  will  include 
Stephen,  was  a  great  legislator.  The  genuine  laws  of  William 
the  Conqueror  are  few  ;  of  most  of  them  we  shall  speak  by  and 
by.  The  two  most  important  are  that  by  which  he  severs  the 
ecclesiastical  jurisdiction  from  the  temporal,  and  that  by  which 
he  insists  that  every  man,  no  matter  of  whom  he  holds  his 
land,  is  the  king's  man  and  owes  allegiance  to  the  king.  From 
the  lawless  Rufus  we  have  no  law.  Henry  the  First  on  his 
accession  (noo)  purchases  the  support  of  the  people  by  an 
important  charter — important  in  itself,  for  it  is  a  landmark  in 
constitutional  history,  important  also  as  the  model  for  Magna 
Carta.  Stephen  also  has  to  issue  a  charter,  but  it  is  of  less 
value,  for  it  is  more  general  in  its  terms.  It  is  as  adminis- 
trators rather  than  as  legislators  that  William  the  First  and 
Henry  the  First  are  active.  The  making  of  Domesday,  the 
great  rate  book  of  the  kingdom,  is  a  magnificent  exploit,  an 
exploit  which  has  no  parallel  in  the  history  of  Europe,  an  ex- 
ploit only  possible  in  a  conquered  country.  Under  Henry  the 
First  national  finance  becomes  an  orderly  system,  a  system  of 


io  Constitutional  History  PERIOD 

which  an  orderly  written  record  is  kept.  The  sheriff's  accounts 
for  1132  are  still  extant  on  what  is  called  the  Pipe  Roll  of 
31  Hen.  I ;  this  is  one  of  our  most  valuable  sources  of  infor- 
mation. It  has  been  casually  preserved ;  it  is  not  until  the 
beginning  of  Henry  II's  reign  that  we  get  a  regular  series  of 
such  records.  To  illustrate  the  Norman  reigns  we  have  also 
a  few  unofficial  records  of  litigation.  These  have  been  printed 
by  Mr  Bigelow  in  his  Placita  Anglo- N or mannica.  The 
genuine  laws  of  William  I  and  the  Charter  of  Henry  I  will 
be  found  in  Stubbs'  Select  Charters.  The  so-called  Leges 
Edwardi  Confessoris,  Willelmi  Conquestoris,  and  Henrici  Primi 
are  among  the  Ancient  Laws  published  by  the  Record 
Commissioners1. 

iii.     Henry  II  ( 1 1 54-89),  Richard  ( 1 1 89-99),  John  ( 1 199- 
1216). 

The  reign  of  Henry  II  is  of  great  importance  in  legal 
history ;  he  was  a  great  legislator  and  a  great  administrator. 
Some  of  his  laws  and  ordinances  we  have,  they  have  been 
casually  preserved  by  chroniclers  ;  others  we  have  lost.  The 
time  had  not  yet  come  when  all  laws  would  be  carefully  and 
officially  recorded.  At  his  coronation  or  soon  afterwards  he 
issued  a  charter,  confirming  in  general  terms  the  liberties 
granted  by  his  grandfather,  Henry  I.  The  next  monument 
that  we  have  of  his  legislation  consists  of  the  Constitutions  of 
Clarendon  issued  in  1164.  Henry's  quarrel  with  Becket  was 
the  occasion  of  them.  They  deal  with  the  border  land  between 
the  temporal  and  the  ecclesiastical  jurisdictions,  defining  the 
province  of  the  spiritual  courts.  During  the  anarchy  of 
Stephen's  reign  the  civil,  as  contrasted  with  the  ecclesiastical, 
organization  of  society  had  been  well-nigh  dissolved — the 
church  had  gained  in  power  as  the  state  became  feeble. 
Henry  endeavoured  to  restore  what  he  held  to  be  the  ancient 
boundary,  to  maintain  the  old  barriers  against  the  pretensions 
of  the  clergy.  These  Constitutions  are  the  result.  To  some 

1  The  Leges  Edwardi  Confessoris  and  the  Leges  Henrici  Primi  may  now  be 
read  in  Liebermann's  Gesetze  der  Angelsachsen.  For  a  full  and  valuable  com- 
mentary on  the  latter  document  see  Stubbs,  Lectures  ont  Early  Ehglish,  History, 
143—  65-  For  the  Leges  Willelmi  see  Stubbs,  Select  Charters,  p.  84. 


I  Growth  of  the  Canon  Law  \  i 

extent  Henry  failed :  the  murder  of  the  Archbishop  shocked 
the  world,  and  shocked  him,  and  he  was  obliged  to  surrender 
several  of  the  -points  for  which  he  had  contended.  Never- 
theless in  the  main  he  was  successful ;  by  the  action  of  .the 
royal  court  which  now  becomes  steady  and  vigorous  a  line  was 
drawn  between  the  temporal  and  the  spiritual  spheres,  though 
it  was  not  exactly  the  line  which  Henry"  tried  to  define,  and 
though  for  a  century  and  more  after  his  death  there  was  still 
a  debateable  border  land.  The  Canon  law  was  just  taking 
shape,  a  law  for  ecclesiastical  matters  common  to  all  Europe. 
One  great  stage  in  its  development  is  marked  by  the  Decretum 
Gratiani,  the  work  of  a  Bolognese  monk,  composed,  it  is 
believed,  between  1139  and  1142,  i.e.  in  our  King  Stephen's 
reign.  The  decrees  of  ecclesiastical  councils,  ancient  and 
modern,  genuine  and  spurious,  were  being  elaborated  into  a 
great  system  of  jurisprudence.  The  classical  Roman  law,  which 
for  some  time  past  had  become  the  subject  of  serious  study, 
was  a  model  for  this  new  system.  We  have  to  remember 
that  throughout  the  subsequent  ages  Canon  law  administered 
by  ecclesiastical  courts  regulated  for  all  Englishmen  some  of 
the  most  important  affairs  of  life.  It  did  not  merely  define 
the  discipline  of  the  clergy — all  matters  relating  to  marriages 
and  to  testaments  fell  to  its  share.  A  great  deal  of  the 
ordinary  private  law  even  of  our  own  day  can  only  be  under- 
stood if  we  remember  this.  The  fundamental  distinction  that 
we  draw  between  real  and  personal  property,  to  take  one 
example,  is  the  abiding  outcome  of  the  division  of  the  field  of 
law  into  two  departments,  the  secular  and  the  spiritual.  Why 
do  we  still  couple  '  probate '  with  '  divorce '  ?  Merely  because 
both  matrimonial  and  testamentary  causes  belonged  to  the 
church  courts. 

We  have  just  mentioned  the  revived  study  of  Roman  law. 
In  Southern  Europe  Roman  law  had  never  perished :  it 
had  survived  the  dark  ages  in  a  barbarized  and  vulgarized 
form.  Then  in  the  eleventh  century  men  began  to  turn 
once  more  to  the  classical  texts.  The  new  study  spread 
rapidly.  In  1143  Archbishop  Theobald  brought  hither  in 
his  train  one  Vacarius,  a  Lombard  lawyer.  He  lectured  in 
England  on  Roman  law;  it  seems  that  Stephen  silenced 


12  Constitutional  History  PERIOD 

him ;  Stephen  had  quarrelled  with  the  clergy.  But  he  did 
not  labour  in  vain;  the  influence  of  Roman  law  is  apparent 
in  some  of  Henry's  reforms,  and  it  has  even  been  con- 
jectured that  Henry  as  a  youth  had  sat  at  the  feet  of 
Vacarius1.  To  the  early  part  of  his  reign  we  owe  certain 
measures  of  the  utmost  importance.  The  text  of  the  ordinances 
or  assizes  whereby  they  were  accomplished  we  have  lost.  An 
assize  (assisa)  seems  to  mean  in  the  first  instance  a  sitting,  a 
session  for  example  of  the  king  and  his  barons ;  then  the  name 
is  transferred  to  an  ordinance  made  at  such  a  session — we  have 
the  Assize  of  Clarendon,  the  Assize  of  Northampton,  and,  to 
look  abroad, the  Assizesof  Jerusalem;  then  again  it  is  transferred 
to  any  institution  which  is  created  by  such  an  ordinance. 
Henry  by  some  ordinance  that  we  have  lost  took  under  his 
royal  protection  the  possession,  or  seisin  as  it  was  called,  of 
all  freeholders.  The  vast  importance  of  this  step  we  shall 
better  understand  hereafter.  He  provided  in  his  own  court 
remedies  for  all  who  were  disturbed  in  their  possession.  These 
remedies  were  the  possessory  assizes  of  novel  disseisin  and 
mort  d'ancestor;  there  was  a  third  assize  of  darrein  present- 
ment which  dealt  with  the  right  of  presenting  to  churches. 
Doubtless  these  possessory  actions  were  suggested  by,  though 
they  were  not  copied  from,  the  Roman  interdicta.  The  dis- 
tinction between  a  possessory  and  a  proprietary  action  was 
firmly  grasped ;  proprietary  actions  still  went  to  the  feudal 
courts  while  the  king  himself  now  undertook  to  protect 
possession.  All  this  will  become  more  intelligible  hereafter. 
But  if  the  thought  of  protecting  possession  or  something 
different  from  property  was  of  Roman  origin,  the  machinery 
employed  for  this  purpose  was  of  a  kind  unknown  to  the 
Romans,  it  was,  we  may  say,  a  trial  by  jury.  This  new 
procedure  gradually  spreads  from  these  possessory  actions  to 
all  other  actions.  Henry  himself  extended  it  to  proprietary 
actions  for  land — in  the  form  of  the  grand  assize.  The  person 
sued  might  refuse  trial  by  battle  and' have  the  question  *  Who 
has  the  best  right  to  this  land?'  submitted  to  a  body  of  his 
neighbours  sworn  to  tell  the  truth.  More  of  this  by  and  by 

1  For  a  fuller  account  see  Pollock  and  Maitland,  History  of  English  Law,  vol.  j, 
pp.  118-9. 


I  Henry  II  13 

when  we  come  to  the  history  of  trial  by  jury;  our  present 
point  is  that  by  providing  new  remedies  in  his  own  court 
Henry  centralized  English  justice.  From  his  time  onwards 
the  importance  of  the  local  tribunals  began  to  wane;  the 
king's  own  court  became  ever  more  and  more  a  court  of  first 
instance  for  all  men  and  all  causes.  The  consequence  of  this 
was  a  rapid  development  of  law  common  to  the  whole  land  ; 
local  variations  are  gradually  suppressed  ;  we  come  to  have  a 
common  law.  This  common  law  is  enforced  throughout  the 
land  by  itinerant  justices,  professional  administrators  of  the 
law,  all  trained  in  one  school.  During  the  latter  part  of 
Henry's  reign  the  counties  are  habitually  visited  by  such 
justices. 

By  the  Assize  of  Clarendon  in  1166  reissued  with  amend- 
ments at  Northampton  in  1176  Henry  begjin  a  great  reform 
of  criminal  procedure.  Practically,  we  may  say,  he  introduced 
tKe~g5fms"oT~trraI  by  jury :  the  old  modes  of  trial,  the  ordeals 
and  the  judicial  combat,  begin  to  yield  before  the  oath  of  a 
body  of  witnesses.  From  1181  we  have  the  Assize  of  Arms 
which  reorganizes  the  ancient  military  force  and  thus  estab- 
lishes a  counterpoise  to  feudalism.  From  1184  we  have  the 
Assize  of  Woodstock,  which  for  the  first  time  defines  the 
king's  rights  in  his  forests.  The  establishment  of  an  orderly 
method  of  taxation  and  the  decline  of  feudalism  as  a  political 
force  are  marked  by  the  first  collection  of  a  scutage  in  1159 — 
personal  service  in  the  army  may  be  commuted  for  a  money 
payment — and  by  the  first  taxation  of  personal  property,  the 
Saladin  tithe  of  1188. 

Two  great  books  illustrate  the  legal  activity  of  the  reign. 
The  Dialogus  de  Scaccario  describes  minutely  the  proceedings 
of  the  Royal  Exchequer.  It  was  written  by  Richard  Fitz 
Neal,  Bishop  of  London  and  Treasurer  of  the  Exchequer.  The 
other  book  is  a  Treatise  on  the  Laws  of  England,  commonly 
attributed  to  Ranulf  Glanvill,  who  became  chief  justiciar 
(prime  minister  and  chief  justice  we  may  say)  in  1180,  This 
book,  known  to  lawyers  as  '  Glanvill/  was  written  in  the  very 
last  years  of  the  reign,  1 187-9.  It  is  the  first  of  our  classical 
text  books.  It  gives  us  an  accurate  picture  of  the  working 
of  the  royal  court.  The  law  contained  in  it  is  mostly  land 


14  Constitutional  History  PERIOD 

law:  as  yet  it  is  with  land  that  the  royal  court  is  chiefly 
concerned.  We  can  see  that  Roman  law  has  been  exercising  a 
subtle  influence ;  the  writer  knows  something  of  the  Institutes 
and  occasionally  copies  their  words;  but  in  the  main  the 
king's  court  has  been  working  out  a  law  for  itself.  It  is  only 
with  the  king's  court  that  the  writer  deals.  The  customs 
which  prevail  in  the  local  courts  are,  he  says,  so  many,  so 
various,  so  confused,  that  to  put  them  in  writing  would  be 
impossible.  However  by  the  action  of  the  royal  court  a  certain 
province  has  been  reclaimed  from  local  custom  for  common 
law;  that  province  is  *  land-holding'  about  which  there  are 
already  many  uniform  rules.  The  book  thus  marks  an  im- 
portant stage  in  the  development  of  common  law1. 

Henry's  reign  finished,  we  look  onwards  to  Magna  Carta. 
Under  Richard  the  tradition  of  orderly  administration,  of 
the  concentration  of  justice  in  the  king's  court  was  main- 
tained. Richard  himself  was  an  absentee  king ;  he  never 
was  in  this  country  save  on  two  occasions  and  then  but  for  a 
few  months ;  the  country  was  governed  by  justiciars,  by  men 
trained  in  the  school  of  Henry  II.  Our  materials  for  legal 
history  now  begin  to  accumulate  rapidly.  Not  that  there  is 
much  that  can  be  called  legislation ;  but  it  now  becomes  the 
practice  to  keep  an  official  record  of  the  business  done  in  the 
king's  court  Our  earliest  judicial  records  come  from  the 
year  1194;  thenceforward  we  have  the  means  of  knowing 
accurately  what  cases  come  before  the  king's  justices  and 
how  they  are  decided.  During  the  first  half  of  John's  reign 
the  country  was  decently  governed,  though  the  legislative  and 
reforming  activity  of  his  father's  day  has  ceased.  But  then 
John  casts  off  all  restraints,  becomes  involved  in  a  great 
quarrel  with  the  church,  in  another  with  the  baronage,  unites 
the  whole  nation  against  him,  and  at  length  in  1215  is  forced 
to  grant  the  great  charter. 

iv.     Henry  III  (1216-72). 

The  great  charter,  from  whatever  point  of  view  we  regard 
it,  is  of  course  a  document  of  the  utmost  importance2.     The 

1  Pollock  and  Maitiand,  history  of  Jiiiglish  Law,  vol.  I,  pp.  161—7. 

2  An  admirable    commentary  on   Magna   Carta  was  published  by   W.    S. 
McKechnie  in  1905. 


I  Magna  Cart  a  .     15 

first  thing  that  strikes  one  on  looking  at  it  is  that  it  is  a  very 
long  document — and  a  good  deal  of  its  importance  consists  in 
this,  that  it  is  minute  and  detailed.  It  is  intensely  practical ; 
it  is  no  declaration  in  mere  general  terms  of  the  rights  of 
Englishmen,  still  less  of  the  rights  of  men ;  it  goes  through 
the  grievances  of  the  time  one  by  one  and  promises  redress. 
It  is  a  definite  statement  of  law  upon  a  great  number  of 
miscellaneous  points.  In  many  cases,  so  far  as  we  can  now 
judge,  the  law  that  it  states  is  not  new  law ;  it  represents  the 
practice  of  Henry  ITs  reign.  The  cry  has  been  not_that  the 
law  should  be  altered,  ]}ut  that  it  should  be  observed,  Jun 
particular,  that  it  should  be^pbserved  by_the_kjng.  Hence- 
forward matters  are  not  to  be  left  to  vague  promises ;  the 
king's  rights  and  their  limits  are  to  be  set  down  in  black  and 
white.  Apart  from  the  actual  contents  of  the  charter,  which 
we  must  notice  from  time  to  time  hereafter,  we  ought  to 
notice  that  the  issue  of  so  long,  so  detailed,  so  practical  a 
document,  means  that  there  is  to  be  a  reign  of  law. 

Now  Magna  Carta  came  to  be  reckoned  as  the  beginning 
of  English  statute  law ;  it  was  printed  as  the  first  of  the 
statutes  of  the  realm.  But  to  explain  this  we  have  first 
to  remark  that  of  Magna  Carta  there  are  several  editions. 
We  have  four  versions  of  the  charter,  that  of  1215,  that 
of  1216,  that  of  1317  and  that  of  1225,  and  between  them 
there  are  important  differences.  Several  clauses  which  were 
contained  in  the  charter  of  1215  were  omitted  in  that  of  1216 
and  were  never  again  inserted.  It  seems  to  have  been  thought 
unadvisable  to  bind  the  young  king  to  some  of  the  more 
strjpgent  conditions  to  which  John  had  been  subjected.  The 
charter  of  1217  again  differs  from  that  of  1216.  Substantially 
it  is  in  1217  that  the  charter  takes  its  final  form;  still  it  is  the 
charter  of  1225  which  is  the  Magna  Carta  of  all  future  times. 
That  there  were  four  versions  is  a  fact  to  be  carefully  remem- 
bered ;  it  is  never  enough  to  refer  to  Magna  Carta  without 
saying  which  edition  of  it  you  mean.  As  we  shall  hereafter 
see,  the  whole  history  of  parliament  might  have  been  very^ 
different,  had  not  a  certain  clause  been  omitted  from  the 
charter  of  1216  and  all  subsequent  versions — a  clause  defining 
the  common  council  of  the  realm. 


1 6  Constittttional  History  PERIOD 

Now  the  charter  of  1225  came  to  be  reckoned  as  the 
beginning  of  our  statute  law.  This  in  part  is  due  to  accidents. 
The  lawyers  of  the  later  middle  ages  had  no  occasion  to  go 
behind  that  instrument ;  the  earlier  ordinances  so  far  as  they 
had  not  become  obsolete  had  worked  themselves  into  the 
common  law  ;  but  every  word  of  the  charter  was  still  of  great 
importance.  So  when  the  time  for  printing  came  Magna 
Carta,  i.e.  the  charter  of  1225,  took  its  place  at  the  beginning 
of  the  statute  book.  It  was  constantly  confirmed ;  Henry 
confirmed  it  in  1237;  Edward  confirmed  it  in  1297 — thence- 
forward down  to  the  days  of  Henry  IV  it  was  repeatedly 
confirmed;  Coke  reckons  thirty-two  confirmations.  It  was 
one  thing  to  obtain  the  charter,  another  to  get  it  observed. 
It  was  a  fetter  on  the  king,  a  fetter  from  which  a  king  would 
free  himself  whenever  he  could  ,  and  the  nation  has  to  pay 
money  over  and  over  again  to  procure  a  confirmation  of  the 
charter : — that  the  king  is  bound  by  his  ancestors*  concessions 
is  a  principle  that  is  but  slowly  established. 

Magna  Carta  then,  however  ill  it  may  be  observed,  con- 
stitutes what  for  the  time  is  a  considerable  body  of  definitely 
enacted  law.  From  the  long  reign  of  Henry  III  we  have  not 
much  other  legislation ;  legislation  is  as  yet  by  no  means  a 
common  event.  The  interest  of  the  reign  is  to  be  found  not 
so  much  in  the  laws  that  are  made  but  in  the  struggle  for 
a  parliament.  Gradually,  as  we  shall  see  hereafter, Jliejdea 
of  what  the  national  assembly  should  be  is  undergoing  a 
change^Tt  is  ceasing  to  be  that  of  a  Jeudal  assembly  of  barons, 
it  isbecpming  that  of  an  assembly  of  the  three  estates  of  the 
realm — clergy,  lords  and  comirfons  ;  the  summoning  oFknights 
of  the  shire  in  1254,  and  of  representative  burgesses  in  1264 
are  the  great  landmarks.  Still  there  are  two  important  legis- 
lative acts.  The  first  of  these  is  known  as  the  Statute  of 
Merton  made  in  1236.  It  contains  provisions  which  are  in 
force  at  the  present  moment.  Among  its  other  noticeable 
clauses,  we  come  across  the  famous  declaration  of  the  barons 
that  they  will  not  change  the  laws  of  England.  They  have 
been  asked  by  the  clergy  to  consent  that  childrefrborn  before 
the  marriage  of  their  parents  should  be  deemed  legitimate  : — 
their  reply  is  ' Nolumus  leges  Angliae  mutaxt'  Between  this 


I  Legal  growth  under  Henry  III        1 7 

and  the  next  great  act,  there  occurs  the  great  crisis  which  we 
know  as  the  Barons'  War.  The  discontent  of  the  nation  with 
Henry's  faithlessness  and  extravagance  comes  to  a  head  in 
1258.  After  stormy  years  of  quarrelling,  a  leader  is  found  in 
De  Montfort ;  the  insurgents  are  victorious  at  Lewes  (14  May, 
1264),  and  then  defeated  at  Evesham  (4  Aug.  1265).  But  a 
great  deal  of  what  they  wanted  is  gained.  The  statute  made 
at  Marlborough  in  1267,  commonly  called  the  Statute  of  Marl- 
bridge,  chiefly  consists  of  a  re-enactment  of  certain  concessions 
which  had  been  obtained  from  the  king  during  the  revolu- 
tionary period,  concessions  which  we  know  as  the  Provisions 
of  Westminster  of  I2591.  The  grievances  redressed  in  this 
instance  are  for  the  most  part  the  grievances  of  the  smaller 
landowners. 

But  it  is  not  only  or  even  chiefly  by  means  of  legislation 
that  English  law  has  been  growing*  The  reign  of  Henry  III 
is  the  time  when  a  great  part  of  the  common  law  takes  definite 
shape — in  particular  the  land  law.  The  king's  court  has  been 
steadily  at  work  evolving  common  law ;  that  law  is  carried 
through  the  length  and  breadth  of  the  kingdom  by  the  itinerant 
justices.  As  yet  the  judges  have  a  free  hand — they  can  invent 
new  remedies  to  meet  new  cases.  Towards  the  end  of  the 
reign  indeed  complaints  of  this  grow  loud.  It  is  more  and 
more  seen  that  to  invent  new  remedies  is  in  effect  to  make 
new  laws  ;  that  the  judges  while  professing  to  declare  the  law 
are  in  reality  making  law ; — and  it  is  more  and  more  felt  that 
for  new  laws  the  consent  of  the  estates  of  the  realm,  at  all 
events  of  the  baronage,  is  necessary.  But  law,  judge-made 
law  if  we  like  to  call  it  so,  has  been  growing  apace.  The 
justices  have  been  learned  men,  mostly  ecclesiastics,  men 
notv  ignorant  of  Canon  Law  and  Roman  Law.  A  great  law 
book  is  the  outcome3.  Henry  of  Bratton,  or  Bracton  as  he  is 
commonly  called,  died  in  1268  ;  for  twenty  years  he  had  been 
a  judge.  Sometime  between  1250  and  1260  he  wrote  his 
treatise  on  the  Laws  of  England.  He  owed  a  great  deal  to 
the  work  of  an  Italian  lawyer,  Azo  of  Bologna,  and  we  can 
plainly  see  that  the  study  of  Roman  law  has  had  a  powerful 

1  Printed  in  Stubbs*  Select  Charters,  pp.  400 — 5. 

8  Pollock  and  Maitland,  History  of  English  Law,  vol.  I,  pp.  106 — 10. 

M.  o 


1  8  Constitutional  History  PERIOD 

influence  on  the  growth  of  English  law:  —  it  has  set  men  to 
think  seriously  and  rationally  of  English  law  as  a  whole, 
to  try  to  set  it  in  order  and  represent  it  as  an  organized  body 
of  connected  principles1.  But  the  substance  of  Bracton's  work 
is  English.  He  cites  no  less  than  500  decisions  of  the  king's 
judges.  English  law,  we  see,  is  already  becoming  what  we 
now  call  '  case  law  '  —  a  decided  case  is  aniul 


ought  to  be  followed  when  a  similaFcase  arises.  We  see.  also 
that  the  growth  of  EngfislTlaw,  especIaTry^nd~"law,  has  been 
very  rapid.  Glanvill's  book  looks  very  small  and  meagre 
when  placed  beside  Bracton's  full  and  comprehensive  treatise. 
We  may  indeed  regard  the  reign  of  Henry  III  as  a  golden 
age  of  judge-made  law:  the  king's  court  is  rapidly  becoming 
the  regular  court  for  all  causes  of  any  great  importance,  except 
those  which  belong  to  the  ecclesiastical  courts,  and  as  yet  the 
judges  are  not  hampered  by  many  statutes  or  by  the  jealousy 
of  a  parliament  which  will  neither  amend  the  law  nor  suffer 
others  to  amend  it  Also  we  now  hear  very  little  of  local 
customs  deviating  from  the  common  law  ;  as  the  old  local 
courts  give  way  before  the  rising  power  of  the  king's  court, 
so  local  customs  give  way  to  common  law.  The  king's  court 
gains  in  power  and  influence  because  its  procedure  is  more 
summary,  more  rational,  more  modern  than  the  procedure  of 
the  local  courts.  Their  procedure  is  never  improved,  it  remains 
archaic;  meanwhile  the  royal  court  is  introducing  trial  by 
jury  ;  all  the  older  modes  of  trial  are  giving  way  before  this 
new  mode.  In  1215  the  Lateran  Council  forbad  the  clergy 
any  longer  to  take  part  in  the  ordeal.  In  England  the  ordeal 
was  at  once  abolished,  and  the  whole  province  of  criminal  law 
was  thus  thrown  open  to  trial  by  jury.  J 

v.    Edivard  the  First  (  1  272-1  307), 

Edward  I  has  been  called  'the  English  Justinian.1  The 
suggested  comparison  is  not  very  happy  ;  it  is  something  like 
a  comparison  between  childhood  and  second  childhood.  Jus- 
tinian, we  may  say,  did  his  best  to  give  final  immutable  form 
to  a  system  which  had  already  seen  its  best  days,  which  had 

1  Select  Passages  from  the  Works  of  Braeton  and  Azot  ed.  F.  W.  Maitland 
(Selden  Society),  1895  —  with  a  brilliant  introduction* 


I  The  English  Justinian  19 

already  become  too  elaborate  for  those  who  lived  under  it. 
Edward,  taking  the  whole  nation  into  his  counsels,  legislated 
for  a  nation  which  was  only  just  beginning  to  have  a  great 
legal  system  of  its  own.  Still  it  is  very  natural  that  we 
should  seek  some  form  of  words  which  will  mark  the  fact 
that  Edward's  reign  is  an  unique  period  in  the  history  of  our 
law.  Sir  M.  Hale,  writing  late  in  the  seventeenth  century,  says 
that  more  was  done  in  the  first  thirteen  years  of  that  reign  to 
settle  and  establish  the  distributive  jgstice  of  the  kingdom,  than 
in  all  the  ages  since  that  time  put  together.  We  can  hardly 
say  so  much  as  this;  still  we  may  say  that  the  legislative 
activity  of  those  thirteen  years  remains  unique  until  the  reign 
of  William  IV  ;  for  anything  with  which  we  may  compare 
Edward's  statutes  we  must  look  forward  from  his  day  to 
the  days  of  the  Reform  Bill.  Now  Hale,  I  think,  hits  the 
mark  when  he  says  that  more  was  done  to  settle  and  establish 
the  distributive  justice  of  the  kingdom  in  Edward's  reign  than 
in  subsequent  ages1.  The  main  characteristic  of  Edward's 
statutes  is  that  they  interfere  at  countless  points  with  the 
ordinary  course  of  law  between  subject  and  subject.  They 
do  more  than  this  —  many  clauses  of  the  greatest  importance 
deal  with  what  we  should  call  public  law  —  but  the  character- 
istic which  makes  them  unique  is  that  they  enter  the  domain 
of  private  law  and  make  vast  changes  in  it.  For  ages  after 
Edward's  day  king  and  parliament  left  private  law  and  civil 
procedure,  criminal  law  and  criminal  procedure,  pretty  much 
to  themselves.  Piles  of  statutes  are  heaped  up  —  parliament 
attempts  to  regulate  all  trades  and  all  professions,  to  settle 
what  dresses  men  may  wear,  what  food  they  may  eat—  ordains 
that  they  must  be  buried  in  wool  —  but  we  may  turn  page  after 
page  of  the  statute  book  of  any  century  from  the  fourteenth 
to  the  eighteenth,  both  inclusive,  without  finding  any  change 
of  note  made  in  the  law  of  property,  or  the  law  of  contract, 
or  the  law  about  thefts  and  murders,  or  the  law  as  to  how 
property  may  be  recovered  or  contracts  may  be  enforced,  or 
the  law  as  to  how  persons  accused  of  theft  or  murder  may  be 
punished.  Consequently  in  Hale's  day  and  in  Blackstone-s 

1  The  History  of  the  Common  Law  of  England,  4th  edn.,  1779,  P»  r5*« 


2 


2O  Constitutional  History  PERIOD 

day,  a  lawyer  whose  business  lay  with  the  common  affairs  of 
daily  life  had  to  keep  the  statutes  of  Edward  I  constantly  in 
his  mind;  a  few  statutes  of  Henry  VIII,  of  Elizabeth,  of 
Charles  II  he  had  to  remember,  but  there  were  large  tracts 
of  past  history  which  had  not  supplied  one  single  law  which 
was  of  any  importance  to  him  in  the  ordinary  course  of  his 
business.  To  a  certain  extent  this  is  true  even  now,  even  after 
the^vigorous  legislation  of  the  last  sixty  years.  There  are  at 
lea§t  two  statutes  of  Edward  I  which  you  will  have  to  know 
well — the  De  donis  conditionalibus  and  the  Quia  emptores 
terrarum — these  still  are  pillars  of  our  land  law;  to  pull  them 
away  without  providing  some  substitute  would  be  to  bring 
the  whole  fabric  to  confusion.  It  is  well  to  remember  the 
dates  of  the  great  statutes. 

1275.     Stat.  Westminster,  I. 
1278.     Stat.  Gloucester. 

1284.  Stat.  of  Wales. 

1285.  Stat.  Westminster,  II. 
Stat  Winchester. 

1290.     Stat.  Westminster,  III. 

1297.     Confirmatio  Cartarum,  with  new  articles. 

But  Edward  was  not  merely  a  great  legislator,  he  was 
a  great  administrator  also,  a  great  organizer.  Take  any 
institution  that  exists  at  the  end  of  the  Middle  Ages,  any 
that  exists  in  1800 — be  it  parliament,  or  privy  council,  or  any 
of  the  courts  of  law — we  can  trace  it  back  through  a  series 
of  definite  changes  as  far  as  Edward's  reign,  but  if  we  go 
back  further  the  object  that  we  have  had  in  view  begins  to 
disappear,  its  outlines  begin  to  be  blurred,  we  pass  as  it  were 
from  sunlight  to  moonlight,  we  cannot  be  certain  whether  that 
which  we  see  is  really  that  for  which  we  have  been  looking. 
Shall  we  call  this  court  that  is  sitting,  the  King's  Bench,  or 
the  Council,  or  the  Parliament  ?  it  seems  to  be  all  and  yet  to 
be  none  of  these.  In  Edward's  day  all  becomes  definite — 
there  is  the  Parliament  of  the  three  estates,  there  is  the  King's 
Council,  there  are  the  well  known  courts  of  law.  Words 
have  become  appropriated — the  king  in  parliament  can  make 
statutes;  the  king  in  council  can  make  ordinances;  a  statute 


I  Growing  Insularity  21 

is  one  thing,  an  ordinance  is  another.  It  is  for  this  reason 
that  any  one  who  would  study  the  constitution  of  older  times, 
should  first  make  certain  that  he  knows  the  constitution  as  it 
is  under  Edward  I. 

The  vigorous  legislation  of  the  time  has  an  important 
consequence  in  checking  the  growth  of  unenacted  law.  Hence- 
forward the  common  law  grows  much  more  slowly  than  under 
Henry  III.  Its  growth  is  hampered  at  every  turn  by  statuA — 
the  judges  are  checked  by  the  now  admitted  principle  that 
changes  in  the  law  are  not  to  be  made  without  the  consent 
of  parliament.  Law  continues  to  grow,  but  it  can  grow  but 
slowly;  the  judges  are  forced  to  have  recourse  to  fictions  and 
evasions  because  the  highroad  of  judge-made  law  has  been 
barred.  Two  law  books  come  to  us  from  Edward's  reign, 
Britton  and  Fleta,  both  written  in  1290  or  thereabouts  ;  Brit- 
ton  in  French,  Fleta  in  Latin ;  both  are  little  better  than  poor 
epitomes  of  Bracton's  work,  epitomes  which  take  notice  of 
the  changes  introduced  by  the  great  statutes.  We  learn  from 
them  an  important  fact : — it  is  plain  that  English  lawyers  are 
no  longer  studying  Roman  law.  There  can  be  no  doubt  that 
under  Henry  III  Roman  law  was  slowly  gaining  ground  in 
England.  To  any  further  Romanization  of  English  law,  a 
stop  was  put  by  Edward's  legislation.  The  whole  field  of  law 
was  now  so  much  covered  by  statute,  that  the  study  of  Roman 
law  had  become  useless.  About  the  same  time,  we  no  longer 
find  ecclesiastics  sitting  in  the  royal  courts;  Bracton  was  an 
ecclesiastic,  an  archdeacon,  and  the  great  judges  whose  de- 
cisions he  cites  were  ecclesiastics — Martin  Pateshull  became 
Dean  of  St  Paul's,  William  Raleigh  became  Bishop  of  Win- 
chester. But  the  opinion  steadily  grew  among  the  clergy  that 
ecclesiastics  should  not  sit  in  lay  tribunals.  The  consequence 
is  that  from  the  beginning  of  Edward's  reign,  English  law 
becomes  always  more  insular,  and  English  lawyers  become 
more  and  more  utterly  ignorant  of  any  law  but  their  own. 
Thus  English  law  was  saved  from  Romanism ;  by  this  we 
lost  much — but  we  gained  much  also.  The  loss,  we  may  say, 
was  juristic  ;  if  our  lawyers  had  known  more  of  Roman  law, 
our  law — in  particular  our  land  law — would  never  have  become 
the  unprincipled  labyrinth  that  it  became; — the  gain,  we 


22  Constitutional  History  PERIOD 

may  say,  was  constitutional,  was  political : — Roman  law  here 
as  elsewhere  would  sooner  or  later  have  brought  absolutism 
in  its  train.  It  should  be  added  that  the'rapid  growth  of  the 
common  law  under  Henry  III  was  connected  both  as  cause 
and  as  effect  with  the  growth  of  a  large  class  of  English 
lawyers.  From  the  beginning  of  Edward's  reign,  it  is  a  large 
and  a  powerful  class — and  it  is  from  among  the  members  of 
this  class  that  the  king  chooses  his  judges.  And  now  a  new 
form  of  legal  literature  appears.  From  1292  we  get  our  first 
law  report — the  first  of  the»  Year  Books.  The  Year  Books 
are  reports  of  discussions  which  took  place  in  court — of  the 
arguments  of  counsel  and  the  opinions  of  the  judges.  The 
series  extends  from  Edward  I  to  Henry  VIII.  Together  with 
the  text-books  of  Glanvill,  Bracton,  Britton  and  Fleta,  they  are 
the  great  source  of  all  our  information  as  to  the  common 
law  and  not  only  are  they  a  source  of  information,  but  the  cases 
reported  in  them  were  regarded  as  authorities — indeed  they 
are  so  regarded  even  at  the  present  day — if  an  occasion  arises 
upon  which  they  could  be  appropriately  cited : — but  this  of 
course  seldom  happens,  for  the  whole  field  of  common  law  is 
pretty  well  covered  by  much  more  modern  authorities.  Still 
we  note  that  from  the  middle  of  the  thirteenth  century  our 
common  law  has  been  case  law,  that  from  1292  onwards  we 
have  law  reports,  that  from  1194  onwards  we  have  plea-rolls1. 
This  term  common  law,  which  we  have  been  using,  needs 
some  explanation.  I  think  that  it  comes  into  use  in  or  shortly 
after  the  reign  of  Edward  the  First  The  word  'common' 
of  course  is  not  opposed  to  'uncommon':  rather  it  means 
'general/  and  the  contrast  to  common  law  is  special  law. 
Common  law  is  in  the  first  place  unenacted  law ;  thus  it  is 
distinguished  from  statutes  and  ordinances.  In  the  second 
place,  it  is  common  to  the  whole  land  ;  thus  it  is  distinguished 
from  local  customs.  In  the  third  place,  it  is  the  law  of  the 
temporal  courts ;  thus  it  is  distinguished  from  ecclesiastical 

1  Five  volumes  of  the  Year  Books  of  Edward  I,  and  thirteen  volumes  of  the 
Year  Books  of  Edward  III,  are  published  in  the  Rolls  Series.  The  Selden  Society 
has  undertaken  the  publication  of  the  Year  Books  of  Edward  II.  The  first  three 
volumes,  edited  by  Majtland,  have  already  appeared,  with  introductions  of  the 
greatest  interest  and  importance. 


i  Common  Law  23 

law,  the  law  of  the  Courts  Christian,  courts  which  throughout 
the  Middle  Ages  take  cognisance  of  many  matters  which  we 
should  consider  temporal  matters — in  particular  marriages  and 
testaments.  Common  law  is  in  theory  traditional  law — that 
which  has  always  been  law  and  still  is  law,  in  so  far  as  it  has 
not  been  overridden  by  statute  or  ordinance.  In  older  ages, 
while  the  local  courts  were  still  powerful,  law  was  really  pre- 
served by  oral  tradition  among  the  free  men  who  sat  as  judges 
in  these  courts.  In  the  twelfth  and  thirteenth  century  as  the 
king's  court  throws  open  its  doors  wider  and  wider  for  more 
and  more  business,  the  knowledge  of  the  law  becomes  more 
and  more  the  possession  of  a  learned  class  of  professional 
lawyers,  in  particular  of  the  king's  justices.  Already  in 
John's  reign  they  claim  to  be  juris  periti.  More  and  more 
common  law  is  gradually  evolved  as  ever  new  cases  arise; 
but  the  judges  are  not  conceived  as  making  new  law — they 
have  no  right  or  power  to  do  that — rather  they  are  but 
declaring  what  has  always  been  law. 


B.     The  Land-System. 

It  may  seem  strange  that  we  begin  our  survey  of  public 
law  by  examining  the  system  of  landed  property,  for  pro- 
prietary rights  we  may  say  are  clearly  a  topic  of  private  law. 
That  is  true  in  our  own  day,  though  even  now  it  is  impossible 
for  us  fully  to  understand  our  modern  public  law  unless  we 
know  something  of  our  law  of  property: — for  instance  the  right 
to  vote  in  elections  for  members  of  Parliament  is  clearly  a 
right  given  by  public  law,  but  directly  we  ask,  Who  have  this 
right  ? — we  have  to  speak  of  freeholders,  copyholders,  lease- 
holders and  so  forth,  to  use  terms  which  have  no  meaning  to 
those  who  do  not  know  some  little  of  our  law  of  landed 
property.  But  if  this  be  true  of  our  own  day,  it  is  far  truer 
of  the  Middle  Ages.  What  is  meant  by  the  word  'feudalism* 
we  shall  understand  more  fully  hereafter — but  here  we  may 
describe  '  feudalism '  as  a^state  of  society  in  which  all  or  a 
great  part  of  public  rights  and^aufies^aire^lnextricably  inter- 
woven with  the  tenure  of  land,  in  which  the  tf  hole  governmental 


24  Constitutional  History  PERIOD 

system — financial,  military,  judicial — is  part  of  the  law  of 
private  property.  I  do  not  mean  that  feudalism  so  complete  as 
this  is  ever  found — much  less  that  we  find  it  in  England, — we 
shall  see  that  in  this  country  the  feudal  movement  was  checked 
at  an  early  date : — but  still  it  is  utterly  impossible  to  speak  of 
our  medieval  constitution  except  in  terms  of  our  medieval  land 
law.  Let  us  then  briefly  survey  the  land  law  of  Edward  I's 
time — briefly,  and  having  regard  to  its  public  importance ; 
when  you  come  to  study  real  property  law  you  will  have  to 
examine  the  same  system  more  closely  and  from  another 
point  of  view1. 

We  must  start  with  this : — All  land  is  held  of  the  king. 
The  person  who  has  the  right  to  live  on  the  land  and  to 
cultivate  it,  is  a  tenant.  He  holds  that  land  of  some  one  who 
is  his  lord.  If  that  some  one  be  the  king,  then  the  tenant  is 
one  of  the  king's  tenants  in  chief,  or  tenants  in  capite.  But 
between  the  tenant  and  the  king  there  may  stand  many 
persons ;  A  may  hold  the  land  of  B,  who  holds  of  C,  who 
holds  of  D,  and  so  forth  until  we  come  to  Z  who  holds 
immediately  of  the  king,  who  is  one  of  the  king's  tenants  in 
capite.  Each  of  the  persons  who  stands  between  A  and  the 
king  is  a  mesne,  i.e.  intermediate,  lord  ;  as  regards  those  who 
stand  below  him  he  is  lord,  as  regards  those  who  stand  above 
him  he  is  tenant.  Thus  take  a  short  series  ;  A  holds  of  B 
and  B  holds  of  the  king;  here  B  is  lord  of  A,  but  tenant  of 
the  king. 

Such  is  the  actual  arrangement.  With  it  is  connected  the 
theory  that  at  some  past  time  all  lands  were  the  king's  to  do 
what  he  liked  with.  He  gave  land  to  Z  (one  of  his  great 
barons)  and  his  heirs  in  return  for  certain  services,  Z  then 
gave  part  of  it  to  Y,  Y  to  X,  and  so  on  until  we  come  to  the 
lowest  tenant,  to  A  who  now  has  the  right  to  enjoy  the  land 
and  take  the  fruits  thereof.  This  process  of  creating  new 
tenancies  is  called  subinfeudation.  At  the  moment  at  wEich 
we  have  placeH~ourseTves7that  of  Edward's  death  in  1307,  a  new 
measure  has  very  lately  been  taken  to  put  a  stop  to  this  pro- 
cess,— the  statute  Quia  emptores  terrarum  passed  in  1290: 

1  The  subject  of  this  section  is  treated  with  greater  fullness  in  the  History  of 
English  Law,  vol.  I,  pp.  229 — 406. 


I  The  Land-System  25 

more  of  this  hereafter.  In  passing  let  us  warn  ourselves  not 
to  accept  this  legal  theory  that  there  was  a  time  when  all 
land  was  the  king's  to  do  what  he  liked  with  as  describing  a 
historical  truth ;  at  present  we  note  that  it  has  become  the 
theory.  No  one  therefore,  save  the  king,  has  land  that  he 
does  not  hold  of  some  one  else — every  other  person  has 
some  superior,  some  lord :  the  formula  is  tenet  terram  illam 
de  B. 

Now  in  every  case  the  tenant  in  respect  of  the  land  owes  ( 
some  service  to  the  lord — this  in  theory  is  the  return  he  makes 
to  his  lord  for  the  land — he  holds  by  some  tenure  (tenurd)  by 
some  mode  of  holding.  Gradually  these  tenures  have  been 
classified  : — we  may  reckon  six  tenures,  (i)  frankalmoign, 
(2)  knight  service,  (3)  grand  scrjeanty,  (4)  petty  serjeanty^ 
(5)  free  socage,  (6)  villeinage. 

(1)  I  mention  frqjkalrpoigti  first;  it  can  be  very  briefly 
dismissed,  but  is  instructive  as  showing  how  far  the  theory  of 
tenure  has  been  pressed.      Sometimes  religious  bodies  and 
religious  persons,  monasteries,  bishops,  parsons,  hold  land  for 
which  they  do  no  earthly  service  to  the  lord.    They  are  said  to. 
hold  by  way  of  free  alms,  free  chsnty^er  liberam  elemosynam^ 
in  frankalmoign.     The  theory  of  tenure  however  is  saved  by 
the  doctrine  that  they  owe  spiritual  service,  that  they  are 
bound  to  pray  for  the  soul  of  the  donor  who  has  given  them 
this  land,  and  this  duty  can  be  enforced  by  spiritual  censures 
in  the  ecclesiastical  courts.     Do  not  think  that  a  monastery 
or  a  bishop  can  hold  by  no  other  than  this  easy  tenure ;  on 
the  contrary,  though  a  large   part   of  England  is  held   by 
ecclesiastics,  tenure  in  frankalmoign  is  somewhat  exceptional 
— the  ecclesiastics  often  hold  by  military  service. 

(2)  By  far  the  greater  part  of  England  is  held  of  the  king 
ky  military  service,  by  knight  service  ;  in  some  way  or  another 
it  has  come  to  be  mapped  out  in  knight's  fees.     We  cannot 
say  that  a  particular  acreage  of  land  or  land  of  a  particular 
value  constitutes  a  knight's  fee  (feodum  militis)\  but  it  seems 
as  if  there  had  been  a  vague  theory  that  a  knight's  fee  should 
normally  be  worth  ^20  a  year  or  thereabouts.    But  in  Edward's 
day  we  can  say,  that  whether  owing  to  some  general  rule  or  to 
bargains  made  in  each  particular  case,  it  has  become  settled 


26  Constitutional  History  PERIOD 

that  this  particular  territory  owes  the  service  of  one  knight, 
that  it  is  feodum  militis,  while  another  has  not  been  split  into 
single  knight's  fees  but  owes  altogether  the  service  of  five  or 
often  knights. 

The  service  due  from  a  single  knight's  fee  is  that  of  one 
fully  armed  horseman  to  serve  in  the  king's  army  for  40  days 
in  the  year  in  time  of  war.  We  notice  however  that  there  has 
been  constant  quarrelling  between  king  and  barons  as  to  the 
definition  of  this  service  Can  the  tenant  be  forced  to  serve 
in  foreign  parts  ?  As  a  matter  of  fact  they  have  done  so :  but 
in  1213  they  refused  to  follow  John  to  France  and  so  forced 
on  the  grant  of  the  Charter,  and  very  lately,  in  1297,  they  have 
refused  to  follow  Edward  to  France  and  so  forced  on  the 
confirmation  of  the  Charter.  That  they  are  obliged  to  serve 
against  the  Scots  and  the  Welsh  is  not  doubted. 

The  tenant  by  knight's  service,  whether  he  holds  of  the 
king  or  of  some  mesne  lord  must  do  homage  to  his  lord  and 
must  swear  fealty.  The  act  of  homage  is  this — the  tenant 
kneels  before  his  lord  and  holds  his  hands  between  the  hands 
of  his  lord,  and  says,  'I  become  your  man  from  this  day  forward 
of  life  and  limb  and  of  earthly  worship,  and  unto  you  shall  be 
true  and  faithful  and  bear  to  you  faith  for  the  tenements  that 
I  hold  of  you ' — then,  if  the  lord  be  not  the  king,  he  adds  these 
noteworthy  words,  '  saving  the  faith  that  I  owe  to  the  king.' 
Then  the  lord  kisses  his  man.  Fealty  is  sworn  thus,  with 
hand  on  book, '  Hear  this  my  lord  that  I  shall  be  faithful  and 
true  unto  you  and  faith  to  you  shall  bear  for  the  lands  that 
I  hold  of  you,  and  that  I  shall  lawfully  do  to  you  the  customs 
and  services  which  I  ought  to  do,  so  help  me  God  and  his 
saints/  The  act  of  homage  constitutes  an  extremely  sacred 
bond  between  lord  and  man — the  bond  of  fealty  is  not  so 
close — and  an  oath  of  fealty  must  be  sworn  in  many  cases  in 
which  homage  need  not  be  done.  The  nature  of  these  bonds 
we  shall  consider  at  large  by  and  by — happily  for  England  they 
became  rather  moral  than  legal  bonds. 

As  a  consequence  of  holding  by  knight's  service  the  tenant 
is  subject  to  many  burdens  which  we  know  as  the  incidents  of 
military  tenure :  it  is  usual  to  reckon  seven ;  each  of  them  has 
its  own  history. 


I  Aids  and  Reliefs  27 

(a)  Aids.    There  has  been  a  doctrine  of  vague  extent 
that  the  I6rH  can  legitimately  demand  aid  (auxilium)  from  his 
tenant  when  he  is  in  need  of  money.    The  aid  has  been  con- 
sidered as  a  free-will  offering,  but  one  which  ought  not  to  be 
refused  when  the  demand  is  reasonable.  Gradually  the  demand 
has  been  limited  by  law.     In -the  charter  of  1215  John  was 
compelled  to  promise  that  he  would  exact  no  aid  without  the 
common  counsel  of  the  realm  save  in  three  cases,  namely  in 
order  to  make  his  eldest  son  a  knight,  in  order  to  marry  his 
eldest  daughter,  and  in  order  to  redeem  his  body  from  captivity 
and  then  only  a  reasonable  aid.     The  same  restriction  was 
placed  upon  the  mesne  lords.     These  clauses  however  were 
omitted  from  a  charter  of  1216.     In  1297  however  Edward  I 
was  obliged  to  promise  that  he  would  take  no  aids  save  by 
the  common  consent  of  the  realm,  saving  the  ancient  aids. 
In  1275  (St.  West.  I.  a  36)  the  amount  of  aid  for  knighting 
the   lord's    son    or    marrying    his    daughter    was    fixed    at 
20  shillings  for  the  knight's  fee,  and  the  same  sum  for  every 
estate  in  socage  of  £20  annual  value. 

(b)  If  the  tenant  in  knight  service  having  an  inheritable 
estate  died  leaving  an  heir  of  full  age,  that  heir  owed  a  relief 
for  his  land — relevium — a  sum  due  on  his  taking  up  the  fallen 
inheritance — relevat  keredttatem.    This  has  been  a  sore  point 
of  contention  between  the  king  and  his  barons,  between  them 
and  their  vassals  ; — the  lord  has  been  in  the  habit  of  getting 
what  he  can  on  such  an  occasion,  even  of  forcing  the  heir  to 
buy  the  land  at  nearly  its  full  price.     Gradually  the  law  has 
become   more  definite.     The  relief  for  the   knight's  fee   is 
100  shillings,  but   the   holder   of  a   barony  (a  term   to   be 
explained  hereafter)  pays  £100;  the  socager  pays  one  years 
rent.    This  was  already  the  law  of  Glanvill's  time;   it  was 
confirmed  by  the  charter  (1215,  c.  2). 

But  (c)  the  lords  have  contended  for  a  certain  or  uncertain 
right  of  holding  the  land  of  the  dead  tenant  until  the  heir 
shall  offer  homage  and  pay  relief: — this  right  is  that  of  taking 
the  first  seisin  after  the  tenant's  death,  the  right  of  primer 
seisin.  In  this  case  law  has  gone  against  the  lords;  it  is 
established  by  the  Statute  of  Marlborough  (1267,  c.  16)  that 
the  lord  may  iiot  seize  the  land,  he  may  but  make  a  formal 


28  Constitutional  History  PERIOD 

entry  upon  it  in  order  to  preserve  evidence  of  his  lordship. 
Law,  however,  has  not  had  the  same  measure  for  the  king  as 
for  other  lords — the  king  has  a  right  of  primer  seisin — he  may 
keep  the  heir  of  his  tenant  out  for  a  year — or  what  comes  to 
the  same  thing,  he  can  in  addition  to  the  relief  extort  one 
year's  profit  of  the  land. 

(d)  On  the  other  hand  there  are  rights  of  the  lord  which 
have  steadily  grown  and  which  the  law  has  now  sanctioned. 
If  the  heir  of  the  military  tenant  is  under  the  age  of  twenty- 
one,  being  male,  or  fourteen,  being  female,  the  lord  is  entitled 
to  wardship — to  wardship  of  the  body  of  his  tenant,  to  ward- 
ship j)f  the  land  also.      This  means  that  he  can  enjoy  the 
lands  for  his  own  profit  until  the  boy  attains  twenty-one  or 
the  girl  fourteen.     He  is  bound  to  maintain  the  child  and  he 
must  not  commit  waste,  but  within  these  limits  he  may  do 
what  he  likes  with  the  land  and  take  the  profits  to  his  own 
use — and    this    profitable   right   is   a   vendible   commodity: 
wardships  are  freely  bought  and  sold.     Here  again  we  find 
that  the  king  has  peculiar  rights — prerogative  rights  they  are 
called.     Generally,  if  the  child  holds  of  two  lords,  each  lord 
gets  the  wardship  of  those  lands  that  are  holden  of  him ;  but 
if  one  lord  be  the  king,  then  he  gets  a  wardship  of  all  the 
lands,  of  whomsoever  they  be  holden. 

(e)  Connected  with  the  right  of  wardship  is  the  right  of 
marriage.     This  we  can  see  has  steadily  grown  as  we  trace  it 
from  the  charter  of  Henry  I  to  the  charters  of  John  and 
Henry  III  and  the  Statute  of  Merton  (1236).    It  comes  to 
this,  that  the  lord  can  dispose  of  the  ward's  marriage,  can  sell 
his  ward  in  marriage.      The  only  limit  to  this  is  that  the" 
match  must  be  an  equal  one;  the  ward  is  not  to  be  disparaged, 
married  to  one  who  is  not  his  or  her  peer.   At  first  apparently 
all  that  the  lord  claims  is  that  his  female  tenant  shall  not 
marry  without  his  consent — a  demand  which  is  reasonable 
enough  while  the  military  tenures  are  great  realities: — my 
female  tenant  must  not  carry  the  land  which  she  holds  of  me 
to  a  husband  who  is  my  enemy.     But  the  right  has  grown  far 
beyond  this  reason: — it  is  now  extended  to  males  as  well 
as  females,  and  the  marriage  of  every  ward  is  a  vendible 
commodity. 


I  Fines  and  Escheats  29 

(/)  Fines  on  alienation.  Here  the  law  has  on  the  whole 
taken  the  side  of  the  tenant.  We  can  produce  no  text  of 
English  law  which  says  that  the  leave  of  the  lord  is  necessary 
to  an  alienation  by  the  tenant.  The  tenant  cannot  indeed 
compel  his  lord  to  accept  a  new  tenant  in  his  place ;  but  he 
can  create  a  new  tenancy ;  B  holds  of  A,  B  can  give  the  land 
to  C  to  hold  of  him,  B.  We  do  not  find  it  laid  down  that  the 
consent  of  A  was  necessary  for  this ;  the  royal  judges,  like  all 
lawyers,  seem  to  have  favoured  free  alienation : — but  we  do 
find  that  the  consent  of  the  lords  is  commonly  asked,  and  we 
do  find  that  the  view  taken  by  the  lords  is  that  their  consent  is 
necessary.  This  is  a  battle-field  during  the  thirteenth  century  ; 
the  greater  lords  are  opposed  to  free  alienation,  the  tenants 
wish  for  it;  the  royal  judges  take  the  side  of  the  tenants, 
except  against  the  king.  In  1290  a  definite  settlement  is 
arrived  at  by  the  famous  Quia  emptores  terrarum.  That 
statute  you  must  some  day  study  as  part  of  our  existing  law 
of  real  property.  What  it  does  is  roughly  speaking  this,  it 
concedes  free  alienation  to  all  except  the  king's  tenants  in 
chief;  on  the  other  hand  it.  puts  a  finaLstop  to  the  process  of 
subinfeudation ;  B  holds  of  A,  B  wants  to  sell  his  land  to  C — 
he  wants  to  convey  it  to  C  and  his  heirs ;  he  can  do  so  without 
A's  consent,  but  C  is  not  to  hold  of  B,  he  is  to  hold  of  A. 
A  tenant  may  substitute  another  person  in  his  place — but  the 
creation  of  a  new  tenure  is  impossible — or  rather,  I  must  be 
exact  though  the  words  may  be  unintelligible  to  you — the 
creation  of  a  new  tenure  in  fee  simple  is  impossible.  The 
liberty  of  alienation  however  is  not  yet  conceded  to  the  king's 
tenants  in  chief;  the  law  has  one  measure  for  the  king  another 
for  other  lords.  If  one  of  the  tenants  in  capite  alienates  with- 
out the  king's  consent,  this  is  a  forfeiture  of  the  land  ;  it  is 
Edward  the  Third's  day  before  this  seventy  was  relaxed  and 
a  fine  of  one-third  of  the  yearly  value  of  the  land  took  the 
place  of  the  forfeiture. 

(g)  Escheat.^  If  the  tenant  died  without  an  heir  the  land 
escheated,  that  isTfell  back  to  the  lord — it  became  his  to  do 
what  he  pleased  with.  As  you  have  been  hitherto  reading 
more  Roman  than  English  law,  I  had  better  sari|  that  the 
English  heir  was  and  is  to  this  day  a  very  different  person 


30  Constitutional  History  PERIOD 

from  the  Roman  haeres.  Before  the  Conquest  the  church  had 
introduced  the  testament  or  last  will,  and  lands  or  at  all  events 
some  lands  as  well  as  goods  could  be  given  by  will.  But  at 
the  Conquest  the  will  of  lands  disappears.  The  maxim  is 
laid  down  in  Glanvill — Only  God  can  make  an  heir,  not  man. 
The  English  heir  therefore  never  succeeds  under  a  will.  This 
is  so  even  at  the  present  day,  though  since  the  Restoration, 
1660,  lands  have  been  freely  alienable  by  will.  To  this  day 
the  heir  is  a  person  who  succeeds  on  an  intestacy — he  who 
takes  land  under  a  will  is  a  devisee :  but  at  the  time  of  which 
we  are  speaking,  Edward  Fs  day,  the  will  of  lands  was  still  in 
the  distant  future.  But  a  failure  of  heirs  is  not  the  only  cause 
for  an  escheat,  if  the  tenant  commits  any  of  those  grave  crimes 
that  are  known  as  felonies — there  is  an  escheat ;  he  loses  the 
land,  no  heir  of  his  can  succeed  him,  the  lord  takes  the  land 
for  good  and  all. 

Such  in  brief  were  the  incidents  of  tenure  by  knight's  service. 

(3)  Grand  serjeanty  (magna  serjeantia)  differed  but  little 
from  this.  The  tenant  instead  of  being  bound  to  serve  as  a  knight 
for  forty  days  in  the  wars,  was  bound  to  do  some  peculiar  ser- 
vice for  the  king — to  carry  his  banner,  or  his  sword,  to  lead  the 
vanguard  or  the  rear  guard,  to  be  his  champion,  the  constable 
or  marshall  of  his  army,  or  the  like.    In  almost  all  respects  this 
tenure  had  all  those  incidents  which  we  have  just  described. 

(4)  Tenure  in  petty  serjeanty  came  in  after-time  to  be  re- 
garded as  but  a  variation  of  tenure  in  socage.    Its  characteristic 
was  the  obligation  to  provide  the  king  with  warlike  implements, 
a  sword,  a  lance,  or  the  like.     It  maintains  its  place  in  the 
catalogue  of  tenures  merely  because  it  was  but  slowly  that  the 
line  was  drawn  between  petty  serjeanty  and  grand  serjeanty.   It 
was  established  by  Magna  Carta  that  where  the  service  though 
of  a  warlike  nature  consisted  merely  in  providing  weapons,  and 
not  in  fighting — then  wardship  and  marriage  were  not  due — 
hence  a  line  was  drawn  between  the  grand  serjeanties  which 
in  all  important  respects  were  like  knight  service — and  the 

xpetty  serjeanties  which  were  almost  the  same  as  socage1, 

1  For  Maitland's  later  views  on  serjeanties  see  History  of  English  Law,  vol.  I, 
pp.  182 — 90.  *  The  central  notion  seems  what  we  may  call  servantship...the  tenant 
by  serjeanty  is  steward,  marshal,  constable,  chamberlain,  usher,  cook,  forester, 
falconer,  dog-keeper,  messenger,  esquire ;  he  is  more  or  less  of  a  menial  servant.' 


I  Socage  Tenure  31 

(5)  Postponing  to  a  more  convenient  season  the  etymology 
of  the  term  socage,  we  find  that  tenure  in  free  socage  is  a 
tenure  by  sonic  fixed  service  which  is  not  military:  that  is 
not  the  full  explanation,  but  will  serve  for  the  present  The_ 
service  of  the  socager  generally  consists  of  a  rent  payable 
either  in  money  or  in  agricultural  produce ;  very  often  he  is 
also  bound  to  do  a  certain  amount  of  ploughing  for  his  lord — 
to  plough  three  days  a  year  or  the  like : — this  is  so  common 
that  lawyers  already  believe,  what  is  not  historically  true,  that 
the  term  socage  is  connected  with  the  word  sock,  which  means 
a  ploughshare.  Now  socage  tenure  involved  some,  but  not 
all,  of  those  burdens  of  which  we  have  lately  spoken — the 
socager  swore  the  oath  of  fealty,  though  he  did  not  usually  do 
homage ;  he  had  to  pay  the  three  aids — the  aid  for  knighting 
the  lord's  son,  marrying  the  lord's  daughter,  redeeming  the 
lord  from  captivity — in  the  first  two  of  these  cases  he  paid 
20  shillings  for  land  of  the  annual  value  of  £20,  by  way 
of  relief  he  paid  one  year's  rent ;  if  he  held  of  the  king  in 
chief,  the  king  was  entitled  to  a  primer  seisin ;  if  he  held  of 
the  king  in  chief  he  could  not  alienate  without  license ;  his 
land  escheated  to  the  lord  if  he  died  without  an  heir  or 
committed  felony.  On  the  other  hand  socage  tenure  diji  not 
involve  the  two  worst  burdens  of  feudalism ;  the  wardship  and 
marriage  of  the  socager's  heir  did  not  belong  to  the  lord.  If 
he  left  an  heir  under  fourteen  the  next  relative  to  whom  the 
land  could  not  descend  was  guardian,  but  when  the  heir 
attained  fourteen  (that  was  full  age  as  regards  socage)  the 
guardian  had  to  account  to  him  for  the  profits  of  the  land. 

We  must  not  be  led  into  speaking  as  though  the  distinc- 
tions between  these  various  kinds  of  tenures  were  distinctions 
between  various  kinds  of  lands.  The  self-same  piece  of  land 
might  at  one  and  the  same  time  be  held  by  knight  service  or 
by  socage.  For  instance  A  has  held  of  the  king  by  military 
service,  but  he  has  enfeofifed  B  to  hold  of  him  in  socage;  the 
military  service  due  from  A  to  the  king  is  a  burden  on  the 
land  ;  if  A  will  not  perform  it,  then  a  distress  can  be  made  on 
the  land  and  B's  goods  may  be  taken  ;  but  as  between  A  and 
B,  it  is  A  not  B  who  is  bound  to  do  the  service,  or  to  pay  the 
scutage ;  A  must  indemnify  B,  if  the  king  compels  B  to  pay 


32  Constitutional  History  PERIOD 

the  scutage;  as  between  A  and  B,  B  is  only  bound  to  pay  the 
fixed  rent,  to  do  the  ploughing  or  the  like.  By  far  the  greater 
part  of  the  lands  of  England  are,  I  take  it,  held  of  the  king  by 
military  service ;  to  find  land  held  immediately  of  the  king 
by  socage  tenure  is  comparatively  rare,  but  there  seem  to  be 
considerable  tracts  which  are  held  of  the  king  by  frank- 
almoign.  The  greater  part  of  England  therefore  is  held  by 
military  service,  but  then  a  great  part  of  this  is  held  by 
socage — the  tenants  in  chief  hold  by  knight's  service,  but 
many  of  their  sub-tenants  hold  by  socage.  Such  is  the  state 
of  things  in  Edward's  day ;  but  as  we  have  lately  seen,  in 
1290  a  stop  was  put  to  the  process  of  subinfeudation — a  new 
tenure  of  an  estate  in  fee  simple  can  no  longer  be  created — no 
new  rungs  can  be  put  into  the  feudal  ladder.  How  far  the 
process  had  really  gone,  it  is  difficult  to  say,  but  I  think  that 
pretty  often  the  lords  and  tenants  stood  three  or  four  deep — we 
may  pretty  often  find  that  D  holds  of  C  who  holds  of  B  who 
holds  of  A  who  holds  of  the  king.  By  means  of  subinfeudation 
free  socage  has  become  a  far  commoner  tenure  than  it  was  in 
the  twelfth  century;  the  lords  have  found  it  profitable  to 
grant  out  their  lands  in  return  for  fixed  rents. 

One  other  remark  of  great  importance  must  be  made — 
military  service  is  due  to  none  but  the  king :  this  it  is  which 
makes  English  feudalism  a  very  different  thing  ifromFrench 
feudaiismj.  Suppose  that  A,  a  great  lord,  held  10  knight's  fees 
oTThe  king,  he  might  grant  one  of  these  to  B  and  stipulate 
that  B  should  do  the  military  service  due  from  that  fee:  B 
then  will  hold  of  A  by  military  service ;  if  B  neglects  to  do 
the  service,  then  A  has  legal  means  of  redress:  B  is  bound  to 
A  to  do  the  service ;  still  the  service  is  due  not  to  A,  but  to 
the  king ;  it  is  service  to  be  done  for  the  king  in  the  national 
army;  it  is  not  service  to  be  done  for  A  in  A's  quarrels. 
This  makes  English  feudalism  a  very  different  thing  from 
continental  feudalism:  elsewhere  we  may  find  the  tenant 
bound  to  fight  for  his  lord  in  his  lord's  quarrels,  bound  even 
to  fight  for  his  immediate  lord  against  that  lord's  lord  ;  here 
in  England,  however  strong  may  be  the  feeling  that  this  ought 
to  be  so,  that  the  man  is  bound  to  espouse  his  lord's  quarrels, 
still  that  feeling  is  not  represented  by  law — rather  it  is 


I  Villeinage  33 

repressed  by  law  : — the  only  quarrel  in  which  any  one  inbound 
to  fight  is  the  king's  quarrel,  the  only  force  in  which  any  one 
is  bound  to  serve  is  the  king's  force ;  our  kings  have  been 
powerful  enough  to  bring  about  this  very  desirable  result. 

(6)  Villeinage.  A  very  large  part  of  England,  by  what- 
ever tenure  it  may  be  holden  of  the  king,  is  ultimately  held  in 
villeinage.  The  word  villenagium  is  used  in  what  seems  to  us 
a  confusing  way  to  cover  two  different  things,  first  a  personal 
status  and  secondly  a  tenure.  There  is  a  very  large  class 
of  persons  who  are  personally  unfree.  The  technical  term 
whereby  they  are  described  is  nativi,  which  means  born  serfs 
or  bondsmen — thus  A  is  the  nativus  of  B  ;  but  not  un fre- 
quently they  are  spoken  of  as  servi  and  as  villani.  They 
are  unfree,  but  we  must  not  call  them  slaves  ;  they  are  not 
rightless ;  the  law  does  not  treat  them  as  things,  it  treats 
them  as  persons ;  still  they  are  unfree ;  they  must  not  leave 
their  lord's  land  ;  if  they  do  he  may  recapture  them  and  bring 
them  back ;  the  law  will  aid  him  in  this  ;  it  gives  him  an 
action  for  recovering  the  body  of  his  nativus,  an  action  de 
nativo  kabendo.  Generally,  if  not  always,  the  nativus  has 
land  which  he  holds  in  villeinage,  which  he  holds  by  villein 
services.  He  has  land,  but  how  far  he  can  be  said  to  have  a 
right  in  this  land  is  a  difficult  question.  One  thing  is  clear — 
the  king's  courts  do  not  protect  that  right  against  his  lord. 
If  the  lord  capriciously  chooses  to  eject  him,  he  has  no  remedy 
against  his  lord  in  the  king's  courts.  We  find  however  that 
he  is  conceived  to  hold  his  land  by  perfectly  definite  services 
and  that  this  is  not  merely  the  theory  of  the  villeins,  but  the 
theory  of  the  lords  also.  This  we  learn  from  the  surveys  which 
religious  houses  made  of  their  manors.  In  such  surveys  we 
find  thousands  of  entries  of  this  kind — A.B.  holds  a  virgate 
of  land ;  for  this  he  is  bound  to  do  certain  services,  e.g.  he  is 
bound  to  work  three  days  a  week  on  the  lord's  land,  and  five 
days  a  week  in  autumn  ;  what  is  to  be  deemed  a  day's  work 
is  often  minutely  defined — thus,  if  he  be  set  to  thrash,  he  must 
thrash  such  and  such  a  quantity ;  if  he  be  set  to  ditch,  he 
must  ditch  so  many  yards  in  a  day — in  general  everything  is 
very  definitely  expressed.  How  far  he  can  be  said  to  be 
protected  in  his  holding  so  long  as  he  does  these  his  due 

M.  - 


34  Constitutional  History  PERIOD 

services  is  a  question  which  we  cannot  raise  without  first 
speaking  of  the  manorial  courts;  but  as  already  said,  the 
king's  courts  give  him  no  protection  against  his,  lord.  Then 
very  generally^  we  find  it  said  that  he  is  prohibited  from 
selling  his  ox  or  his  horse  without  the  lord's  leave,  also  that 
he  may  not  give  his  daughter  in  marriage  without  the  lord's 
leave,  or  at  all  events  may  not  give  her  in  marriage  outside 
the  manor;  in  many  cases  however  the  sum  that  he  must 
pay  for  the  lord's  license  is  a  fixed  sum.  The  king's  courts 
however  do  not  protect  his  movable  goods  against  his  lord, 
any  more  than  they  protect  his  land  against  his  lord  :  the  lord 
may  at  any  time  seize  the  chattels  of  his  nativi.  Again  the 
lord  may  imprison  the  body  of  his  nativus ;  the  king's  courts 
give  no  redress  ;  but  against  maiming  and  death  at  the  lord's 
hand  they  give  protection  ;  the  life  and  limb  of  every  man,  be 
he  free  or  unfree,  are  in  the  king's  protection ;  to  slay  or  to 
maim  him  is  a  felony.  Also  it  is  becoming  more  and  more 
the  theory  and  the  fact  that  the  king's  courts  will  protect  the 
nativus,  his  body,  his  goods,  and  his  lands  against  every  one 
except  his  lord.  The  status  of  the  nativus  is  coming  to  be 
more  and  more  regarded  as  a  mere  relationship  between  him 
and  his  lord,  a  relationship  which  in  no  wise  concerns  third 
persons,  less  and  less  as  a  status  thrust  upon  the  nativus 
by  public  law  which  stamps  him  as  a  person  who  has  but 
imperfect  rights. 

But  again,  we  find  that  a  man  may  well  hold  land  in 
villeinage  and  yet  be  no  nativus.  He  is  a  free  man,  he  may 
leave  the  land  if  he  pleases,  he  cannot  be  captured  and 
brought  back,  his  chattels  are  fully  his  own,  the  lord  may  not 
seize  them.  Bracton  often  puts  it  thus :  '  tenementum  non 
mutat  statum* — the  tenure  of  villeinage  is  different  from  the 
status  of  villeinage — this  man  holds  land  in  villeinage,  but 
personally  he  is  no  villein.  However  such  a  tenant  in 
villeinage  has  as  yet  no  right  in  the  land  which  the  royal 
courts  will  protect  against  the  lord.  Their  doctrine  is  that 
the  land  is  the  lord's  land,  that  the  tenant  is  merely  a  tenant 
at  the  lord's  will,  whom  the  lord  can  at  any  time  eject.  On 
the  other  hand,  as  already  said,  we  find  it  conceived,  even  by 
the  lords  themselves,  that  their  teneutes  in  villenagio,  even 


I  Freehold  35 

their  nativi>  held  by  perfectly  definite  services — so  many  day's 
work  per  week,  ploughings,  harrowings,  reapings  and  so  forth 
to  be  done  on  the  lord's  own  demesne  lands.  We  find  too 
that  these  tenentes  in  villenagio  do  in  fact  alienate  their  lands ; 
they  cannot  do  this  without  the  lord's  license ;  they  yield  up, 
surrender  the  land  into  the  lord's  hand,  who  then  grants  it  to 
the  new  tenant.  We  find  also  that  at  least  in  some  cases  the 
tenant's  rights  are  considered  as  inheritable ;  thus  we  find  it 
said  in  the  manorial  surveys  that  the  heir  of  the  tenant  in 
villeinage  must  pay  this  or  that  sum  to  the  lord  for  leave  to 
enter  on  his  ancestor's  land.  How  far  such  a  tenant  can  be 
said  to  have  any  legal  right  in  his  land  as  against  his  lord  we 
cannot  decide  at  present ;  he  certainly  seems  to  be  conceived 
as  having  what  we  should  call  a  moral  right ;  but  the  first  thing 
to  understand  is  that  he  has  no  right  in  the  land  as  against  his 
lord  that  is  protected  by  the  royal  courts.  This  is  so  in  the 
days  of  Edward  the  First  and  for  a  long  century  afterwards1. 
It  now  becomes  possible  to  fix  the  meaning  of  a  term  that 
we  shall  have  often  to  use,  viz.  a  freeholder.  Ever  since  the 
days  of  Henry  the  Second  the  king's  own  courts  have  afforded 
protection  to  both  the  possession  and  the  property  which  any 
one  has  in  a  libertim  tencmentum.  Gradually  a  great  mass  of 
law  has  been  developed  as  to  the  meaning  of  this  term.  In 
the  first  place  it  excludes  the  tenants  in  villeinage — liberum 
tenementum  is  contrasted  with  villanum  tenementum.  If  a 
person  holds  in  frankalmoign,  by  knight's  service,  by  grand  or 
petty  serjeanty,  or  in  free  socage,  he  has  a  freehold,  and  is  a 
freeholder  ;  not  so  he  who  holds  in  villeinage.  What  exactly 
was  the  test  which  originally  distinguished  free  socage  from 
villeinage,  it  is  now  very  difficult  to  see.  Any  uncertainty  in 
the  agricultural  service  seems  to  have  been  enough  to  stamp 
the  tenure  as  villein a.  The  tenant  in  free  socage  was  often 
bound  to  do  a  certain  amount  of  ploughing  on  the  lord's  land  ; 
but  generally  he  owed  no  week  work,  was  not  bound  to  work 
for  the  lord  so  many  days  in  every  week  as  the  tenant  in 
villeinage  commonly  was.  When  once  the  line  was  drawn, 

1  For  an  elaborate  discussion  on  the  status  of  the  villein,  History  of  English 
Laiv,  vol.  I,  pp.  412 — 32. 

2  The  test  of  villeinage  is  discussed  by  Vinogradoff,  Economic  Journal,  vol.  x 
(1901),  p.  308  fif. 

3—2 


36  Constitutional  History  PERIOD 

\ 

however,  it  was  of  the  utmost  importance ;  once  defcided  that 
the  tenure  was  freehold,  it  was  perfectly  protected  in  the 
king's  own  court ;  once  decided  that  it  was  villein  tenure, 
then  the  king's  courts  treated  it  as  though  it  were  merely  a 
tenancy  at  the  lord's  will.  Villanum  tenementum  is  thus  the 
first  contrast  to  liberum  tenementum. 

But  the  evolution  of  new  forms  of  landholding  provided  a 
new  contrast.  Since  the  Norman  -C6nquest  a  practice  had 
grown  up  of  letting  land  for  terms  of  years,  in  general  short 
terms.  The  lessee,  'the  termor/  who  had  such  a  lease  was 
at  first  considered  as  having  no  right  in  the  land,  no  real 
right,  as  we  should  say  no  right  in  rem.  He  had  merely  a 
personal  right  good  against  his  lessor — his  lessor  had  con- 
tracted that  he,  paying  his  rent,  should  enjoy  the  land  for  a 
term  of  years ;  on  that  contract  he  had  an  action  against  his 
lessor.  If  a  stranger  ejected  him,  he  had  no  action  against 
that  stranger ;  the  lessor  might  sue  the  stranger  for  entering 
his  (the  lessor's)  land ;  but  the  lessee  had  only  an  action  on 
the  contract  against  his  lord.  While  such  was  the  case  the 
lessee  was  not  conceived  to  have  liberum  tenementum^  he  had 
no  tenementum  at  all ;  he  had  but  a  right  in  personam ;  he 
was  no  freeholder.  The  word  freeholder  therefore  excluded 
not  only  the  tenant  in  villeinage,  but  also  the  termor,  the  person 
who  had  a  right  to  enjoy  land  limited  to  some  fixed  term  of 
years.  Before  the  reign  of  Edward  the  First,  the  situation 
had  been  greatly  changed  ;  the  king's  court  had  by  degrees 
given  a  large,  though  not  as  yet  a  complete,  measure  of  protec- 
tion to  the  termor  against  the  world  at  large:  it  had  in  fact 
turned  the  jus  in  personam  into  a  jus  in  rem.  Nevertheless 
the  old  nomenclature  with  its  important  political  consequences 
was  still  maintained — the  termor  was  no  freeholder,  he  had  no 
place  in  the  county  court,  and  therefore  no  vote  in  the  election 
of  knights  of  the  shire — no,  not  until  1832.  A  freeholder 
must  hold  land  at  least  for  the  life  of  himself  or  of  some  other 
person.  He  may  have,  as  the  phrase  goes,  a  greater  estate 
than  this,  he  may  have  an  inheritable  estate,  one  which  will 
descend  to  his  heirs,  or  to  a  limited  class  of  heirs,  the  heirs  of 
his  body — but  this  at  least  he  must  have.  He  who  holds  for 
a  fixed  term  of  years  however  long,  a  thousand  years  or  more> 
is  no  freeholder. 


I  Primogen^t^tre  37 

The  distinction  gets  emphasized  in  another  way.  What- 
ever may  have  been  the  law  or  various  local  customs  of 
inheritance  which  prevailed  here  before  the  Conquest,  we  may 
be  fairly  certain  that  primogeniture  was  unknown ;  that  if  a 
man  left  several  sons,  his  whole  property,  land  and  chattels, 
were  as  a  general  rule  divided  among  them  all — though'  it  is 
very  probable  that  land,  especially  land  held  on  servile 
conditions,  often  went  to  the  youngest  son.  Primogeniture 
creeps  in  with  the  Conquest :  very  gradually  a  set  of  rules  of 
inheritance  giving  the  whole  land  to  the  eldest  male  whenever 
there  are  males  of  equal  degree  was  elaborated,  and  very 
slowly  it  was  extended  from  the  lands  of  military  tenants  to 
other  lands :  that  the  land  of  the  military  tenant  should  not 
be  divisible  is  very  intelligible.  Before  the  end  of  Edward 
the  First's  reign  the  primogenitary  rules  had  been  extended 
to  socage  tenure — this  had  been  a  slow  process,  but  gradually 
it  had  become  established  that  he  who  contended  that  the 
inheritance  should  be  divided  among  all  males  of  equal  degree 
had  to  prove  his  case.  Other  systems  endured  merely  as 
local  customs :  in  Kent  the  inheritance  was  still  heritable 
among  sons,  and  very  commonly  a  tenement  held  in  villeinage 
descended  to  the  youngest  son1.  But  the  gradual  introduction 
of  primogeniture,  together  with  the  principle  that  lands  could 
not  be  left  by  will  and  the  activity  of  the  ecclesiastical  courts 
combined  to  set  a  deep  gulf  between  what  came  to  be  called 
real  and  what  came  to  be  called  personal  property.  An 
explanation  of  these  two  terms  would  take  us  too  far  afield — 
but  seize  this  principle,  that  for  freehold  and  for  chattels  there 
came  to  be  two  distinct  systems  of  succession.  The  freehold 
(with  which  no  ecclesiastical  court  may  meddle)  descends  to 
the  heir,  and  only  by  force  of  some  local  custom  can  it  be  the 
subject  of  a  last  will.  The  chattels  can  be  left  by  will ;  of  all 
testamentary  matters  the  ecclesiastical  courts  have  cognizance  ; 
if  there  is  an  intestacy  the  heir  does  not  get  the  chattels  ;  they 
are  distributed  by  the  ecclesiastical  courts.  But  further  the 
term  of  years,  the  right  of  a  lessee  to  whom  land  has  been  let 
for  a  term  of  years,  is  for  this  purpose  a  chattel ;  it  is  assimi- 

1  For  the  custom  of  Borough  English,  as  it  was  called,  see  ttisiory  of  English 
Law>  vol.  I,  p.  647,  and  vol.  II,  pp.  279 — 80. 


38  Constitutional  History  PERIOD 

lated  to  movable  goods ;  it  is  a  new  creation,  and  the 
ecclesiastical  courts  have  successfully  asserted  that  it  can 
be  disposed  of  by  will — the  term  of  years  is  a  chattel  and 
personal  property.  All  this  you  will  of  course  have  to  study 
much  more  thoroughly  hereafter.  The  distinction  between 
real  *and  personal  property  is  still  an  elementary  distinction 
of  profound  importance  at  the  present  day.  But  it  was 
necessary  to  say  some  little  about  it,  for  the  word  freeholder 
must  be  constantly  in  our  mouths. 

In  the  Middle  Ages  land  law  is  the  basis  of  all  public  law. 
You  will  already  have  observed  how  the  system  of  tenure 
provides  the  king  with  an  army  and  with  a  revenue — men 
owe  military  service  by  reason  of  tenure,  they  pay  aids,  reliefs, 
scutages  by  reason  of  tenure,  by  reason  of  tenure  the  king  gets 
profitable  wardships,  and  marriages,  and  escheats — he  is  the 
supreme  and  ultimate  landlord.  But  the  influence  of  tenure 
does  not  stop  here ;  the  judicial  system  is  influenced  by 
tenure,  the  parliamentary  system  is  influenced  by  tenure. 
Every  lord  claims  a  right  to  hold  a  court  of  and  for  his 
tenants.  This  is  an  important  principle,  but  we  can  hardly 
speak  of  its  working  until  we  have  spoken  of  the  courts  older 
than  feudalism — the  courts  of  the  shire  and  the  hundred  which 
continue  to  exist  during  the  feudal  period. 

Now  if  we  suppose  a  quite  perfect  feudal  arrangement,  then 
all  courts,  all  judicial  and  governmental  organization,  should  be 
determined  by  tenure.  The  king  as  highest  landlord  should 
have  a  court  of  his  tenants  in  chief;  they  would  sit  as  judges 
therein,  and  they  again  would  be  the  king's  advisers;  it  would 
be  with  their  counsel  and  consent  that  the  king  would  impose 
taxes  and  make  laws.  Then  again  each  of  these  tenants  in 
chief  would  have  his  court  of  sub-vassals,  who  again  would 
have  their  courts.  Further  the  sole  connection  between  the 
king  and  these  sub-vassals  would  be  a  mediate  connection,  only 
through  their  lord  would  he  control  them.  C  who  held  of  B 
who  held  of  A  who  held  of  the  king  would  not  be  the  king's 
man  or  have  any  place  in  a  court  or  assembly  over  which  the 
king  presided;  he  would  not  even  be  A's  man;  he  would 
never  meet  or  sit  along  with  A's  tenants  on  a  footing  of 
legal  equality ;  he  would  owe  no  fealty  or  homage  to  any  one 


I  French  and  English  Feudalism.        39 

but  his  immediate  lord,  namely,  B.  This  ideal  of  a  perfectly 
feudalized  society  was  pretty  fully  realized  in  France;  no 
immediate  bond  bound  the  vassals  of  the  Duke  of  Normandy 
to  the  king  of  the  French ;  they  were  bound  to  the  Duke, 
and  the  Duke  to  the  king.  Happily  this  ideal  is  but  very 
imperfectly  realized  in  England,  this  we  must  constantly 
notice ;  but  we  ought  carefully  to  keep  this  ideal  in  mind, 
for  there  have  been  powerful  forces  making  for  its  realization 
and  they  have  had  to  be  met  not  only  by  laws,  but  also  by 
the  sword. 


C.     Divisions  of  the  Realm  and  Local  Government. 

(i)  England  is  divided  into  counties  or  shires.  For  the 
most  part  these  units  are  already  of  very  ancient  date ;  though 
some  of  the  Northern  counties,  in  particular  Lancashire,  have 
been  formed  since  the  Norman  Conquest  Already  in  Edward's 
day  the  arrangement  is  in  most  respects  that  which  at  present 
exists.  Many,  perhaps  most,  of  these  divisions  are  in  their 
origin  not  divisions  into  which  a  kingdom  of  England  has 
been  carved,  but  are  units  which  once  were  independent  states 
but  have  coalesced  to  form  the  kingdom  of  England  ;  Kent, 
Sussex,  Essex,  Middlesex,  Surrey  have  had  kings  of  their 
own  ;  Norfolk  and  Suffolk  are  the  settlements  of  North  Folk 
and  South  Folk.  As  these  old  states  by  conquest  fall  together 
into  one  great  state,  some  part  of  their  primitive  organization 
is  left  to  them ;  to  use  a  modern  phrase,  they  are  mediatized ; 
in  some  cases  the  old  dynasty  of  kings  became  for  a  while 
a  dynasty  of  under-kings,  sub-reguli.  In  other  cases  the  shire 
may  have  been  a  division  carved  out  of  a  larger  whole,  and 
organized  on  the  model  of  one  of  these  mediatized  kingdoms. 
At  any  rate  before  the  Norman  Conquest  each  shire  had  its 
shire  moot,  which  was  a  court  of  justice  and  to  some  extent 
also  a  governmental  assembly  for  the  shire.  In  it  the  ealdor- 
man  had  presided.  The  ealdorman  had  been  a  national  officer 
appointed  by  the  king  and  the  national  assembly.  The  title 
ealdorman  had,  however,  been  giving  way  to  that  of  eorl,  and 
the  office  had  been  tending  to  become  a  hereditary  office. 


4O  Constitutional  History  PERIOD 

Every  shire  had  by  no  means  necessarily  an  ealdorman  or  eorl 
to  itself;  Canute  had  divided  the  kingdom  into  four  great 
earldoms ;  but  down  to  the  time  of  the  Conquest,  this  officer 
had  been  the  chief  man  of  every  shire  that  lay  within  its 
territory,  the  president  of  its  court,  the  leader  of  its  forces. 
He  received  a  third  part  of  the  profits  arising  from  the  shire 
moot,  the  third  penny  of  the  county,  as  it  was  afterwards 
called.  Along  with  the  ealdorman  in  the  shire  moot,  the 
bishop  had  sat ;  it  was  not  until  after  the  Norman  Conquest 
that  a  firm  line  was  drawn  between  temporal  and  ecclesiastical 
causes,  the  two  had  been  heard  together  in  the  ancient  courts. 
But  from  a  very  remote  period,  the  shire  had  had  another 
officer,  namely  the  shire  reeve,  or  as  we  say,  sheriff.  He  seems 
from  the  first  to  have  been  a  royal  officer,  appointed  by  the 
king,  and  representing  the  royal  authority.  The  ealdorman 
seems  to  have  been  considered  as  a  national  leader,  the  sheriff 
as  a  royal  steward  or  bailiff,  chiefly  concerned  with  the  pro- 
tection of  the  king's  interests.  The  shire  moot  had"  seemingly 
been  held  but  twice  in  the  year.  There  seems  little  doubt 
that  originally  every  freeman  of  the  shire  had  been  entitled 
and  bound  to  attend  it,  but  long  before  the  Norman  Conquest 
this  right  and  duty  seems  to  have  been  confined  to  the  free 
land-owners.  The  process  whereby  land-owning  had  taken 
the  place  of  personal  freedom  as  a  political  qualification  will 
come  before  us  hereafter,  but  we  had  better  at  once  make 
a  remark  which  is  necessary  if  we  are  to  understand  medieval 
history.  The  right  of  attending  courts  and  assemblies  was 
not  a  coveted  right ;  we  must  think  of  it  rather  as  a  burden- 
some duty,  a  duty  which  men  will  evade  if  they  possibly 
cap.  We  see  the  class  of  landless  freemen  getting  gradually 
excluded  from  all  participation  in  public  business ;  but  where 
we  are  apt  to  see  a  disfranchising  process,  a  deprivation  of 
political  rights,  they  saw  only  a  relief  from  public  burdens, 
the  burden  of  attending  court  or  being  fined  for  non- 
attendance. 

Now  the  Norman  Conquest  had  not  destroyed  the  shire  or 
the  shire  moot.  There  was  a  change  of  names.  The  French 
district  which  seemed  most  analogous  to  the  English  shire 
was  the  comitatus,  the  county,  the  district  which  had  been 


I  Shire  and  Sheriff  41 

subject  to  the  comes  or  count,  and  so  the  English  shire  be- 
came a  county.  And  the  earl  became  in  Latin  documents, 
the  comes.  But  this  title  or  dignity  was  but  seldom  conferred 
by  William  or  by  his  sons,  and  the  earl  of  Norman  times  has 
about  him  but  little  of  the  character  of  a  public  officer  or  the 
ruler  of  a  province.  The  dignity  was  hereditary,  though  the 
heir  did  not  acquire  full  possession  of  it  until  he  was  invested 
by  the  king,  until  he  was  girt  with  the  sword  of  the  county. 
He  like  his  English  predecessor  was  entitled  to  the  third 
penny  of  the  county;  but  for  the  rest  he  seems  from  the 
Conquest  onwards  to  be  rather  a  great  nobleman,  who  usually 
holds  large  lands  in  the  shire,  than  a  public  officer.  To  this 
the  palatine  earldoms  are  exceptions.  The  earl  of  Chester 
becomes  almost  a  sovereign  prince,  so  does  the  bishop  of 
Durham ;  but  on  the  whole  the  Norman  kings  seem  to  have 
seen  the  danger  of  allowing  official  power  and  jurisdiction  to 
become  hereditary  in  the  houses  of  the  great  feudatories : — 
it  was  not  by  means  of  earls,  but  by  means  of  sheriffs,  that 
they  will  govern  the  counties.  After  the  Conquest,  that  ancient 
officer,  the  sheriff,  becomes  in  Latin  documents  the  vicecomes, 
the  vice-count;  that  was  the  continental  title  which  seemed 
best  suited  to  describe  him  ;  but  this  must  not  induce  us  to 
think  of  him  as  one  who  derives  his  power  from  the  earl, 
or  who  in  any  way  represents  the  earl :  from  first  to  last  the 
sheriff  is  distinctively  a  royal  offigial,  a  representative  of  kingly 
power — and  as  the  Norman  Conquest  greatly  increased  the 
kingly  power,  so  it  greatly  increased  the  power  of  the  sheriff. 
Even  here  the  tendency,  so  marked  in  the  Middle  Ages,  of 
every  office  to  become  hereditary,  to  become  property,  was 
felt,  and  just  in  a  very  few  cases  the  shrievalty  did  become 
hereditary ;  but  on  the  whole  the  kings  succeeded  well  in 
maintaining  their  hold  over  the  sheriffs,  in  treating  them 
simply  as  their  officers  and  representatives.  The  sheriffs  held 
their  offices  at  the  king's  will.  In  1170  Henry  II  dismissed 
all  the  sheriffs  of  England  and  put  others  in  their  stead.  The 
sheriff  had  in  truth  become  a  provincial  viceroy ;  all  the  affairs 
of  the  shire — fiscal,  military,  governmental,  its  justice  and 
police — were  under  his  control,  and  he  was  the  president  of 
the  county  court. 


42  Constitutional  History  PERIOD 

For  the  Conquest  had  not  destroyed  the  shire  moot*  It 
became  the  county  court*  The  Norman  kings  seem  to  have 
seen  its  value  as  a  counterpoise  to  feudalism*  To  a  certain 
extent  the  feudal  principle  that  all  public  rights  and  duties 
are  connected  with  land  holding  had,  even  before  the  Con- 
quest, modified  the  constitution  of  the  ancient  assembly,  it 
had  become  an  assembly  of  free  land-owners.  After  the 
Conquest  the  qualification  became  more  definite;  the  free- 
holder was  entitled  and  was  bound  to  be  present.  But  a 
court  formed  by  all  the  freeholders  of  a  shire  is  not,  you  will 
see,  a  court  formed  upon  feudal  lines.  In  such  an  assembly 
the  tenants  in  chief  of  the  crown  have  to  meet  their  own 
vassals  on  a  footing  of  legal  equality ;  a  tenant  may  find 
himself  sitting  as  the  peer  of  his  own  lord.  This  retention 
of  the  old  courts  is  of  vast  importance  in  the  history  of 
parliament.  In  Henry  I's  day  the  county  court  was  held, 
as  in  the  days  of  the  Confessor,  twice  a  year.  More  frequent 
assemblies  seem  to  have  become  necessary.  By  the  charter 
of  1217,  it  is  ordered  that  the  county  court  shall  not  meet 
more  often  than  once  a  month ;  monthly  sessions  seem  to 
have  been  common. 

For  a  long  time  after  the  Conquest  the  county  court  re- 
mained what  it  was  before  the  Conquest,  the  great  ordinary 
court  of  litigation  for  all  the  men  of  the  shire.  The  growth 
of  the  feudal  courts  (of  which  hereafter)  had  to  some  extent 
diverted  business  from  it ;  on  the  other  hand,  the  king  used 
it  as  a  check  on  the  feudal  courts.  At  the  petition  of  a  suitor 
suggesting  that  he  could  not  get  justice  from  the  lord's  court, 
the  king  would  direct  the  sheriff  to  intervene  and  remove  the 
case  into  the  county  court  Gradually,  however,  the  county 
court  began  to  lose  its  importance  as  a  judicial  tribunal.  This 
was  due,  however,  not  to  the  rivalry  of  the  feudal  courts,  but 
to  the  ever  growing  vigour  of  the  king's  own  court,  which 
began  to  throw  open  its  doors  to  all  suitors.  Of  this  con- 
centration of  justice  something  has  been  said  already  and 
more  must  be  said  hereafter.  But  by  the  end  of  Edward  I's 
reign,  the  king's  own  courts  had  already  practically  become 
courts  of  first  instance  for  all  matters  of  much  importance. 
The  county  court  had  jurisdiction  in  personal  actions  (i.e. 


I  The  County  Court  43 

actions  in  which  land  or  rights  connected  with  land  were  not 
claimed)  up  to  40  shillings,  and  jurisdiction  in  actions  for  land 
when  default  of  justice  was  made  in  a  feudal  court,  but  in 
one  way  or  another  litigants  could  generally  take  their  cases 
to  the  king's  courts. 

But  while  the  county  court  was  thus  losing  its  high  place 
as  a  judicial  tribunal,  it  had  been  becoming  the  very  foundation 
of  the  political  constitution.  When  in  the  middle  of  the 
thirteenth  century  we  find  elected  representatives  called  to 
form  part  of  the  national  assembly,  of  a  common  council 
of  the  realm,  or  parliament,  they  are  the  representatives 
of  the  county  courts.  They  are  not  the  representatives  of 
unorganized  collections  of  men,  they  are  the  representatives, 
we  might  almost  say,  of  corporations.  The  whole  county 
is  in  theory  represented  by  its  court.  So  much  is  this  the 
case  that  the  language  of  the  time  draws  no  distinction 
between  the  two — the  same  word  comitatus  serves  to  describe 
both  the  county,  the  geographical  district,  and  the  assembly. 
The  king  in  his  financial  necessities  has  treated  with  the 
counties,  long  before  the  counties  were  ordered  to  send 
representative  knights  to  parliament.  But  the  corporate 
nature  of  the  county,  the  identity  of  the  county  and  the 
county  court  is  best  brought  out  by  entries  on  the  judicial 
rolls,  entries  which  enable  us  to  see  the  county  in  the  days 
of  Richard  and  of  John.  The  king's  itinerant  justices  from 
time  to  time  visit  the  counties ;  the  whole  county  (totus 
comitatus),  i.e.  the  body  of  freeholders,  stands  before  them  ; 
it  declares  what  the  county  has  been  doing  since  the  last 
visitation ;  the  county  can  give  judgment ;  the  county  can 
give  testimony;  the  county  can  be  punished  by  fines  and 
amercements  when  the  county  has  done  wrong ;  if  the  county 
has  given  false  judgment,  the  county  can  be  summoned  to 
Westminster ;  four  knights  must  be  sent  to  represent  it ;  he 
who  has  suffered  by  its  false  judgment  may  challenge  the 
county  to  fight ;  and  the  county  fights  by  the  body  of  the 
county  champion.  Even  the  principle  of  election  has  been 
long  growing  before  the  day  when  the  county  is  called  on  to 
elect  members  of  parliament.  In  1194,  for  example,  coroners 
are  first  instituted ;  three  knights  and  one  clerk  are  to  be 


44  Constitutional  History  PERIOD 

elected  to  keep  the  pleas  of  the  crown1.  These  custodes  pla- 
citorum  coronae,  or  coroners,  are  intended  to  act  as  checks 
on  the  sheriff;  they  are  elected  by  the  county  court.  There 
has  even  been  a  long  struggle  to  make  the  sheriff  an  elected 
officer,  and  at  Edward's  death  this  has  for  a  moment  been 
a  successful  struggle;  in  1300  he  conceded  the  demand  for 
elective  sheriffs.  This  concession,  however,  was  withdrawn 
very  soon  after  his  death.  Of  the  representation  of  the  county 
court  in  parliament,  we  must  speak  hereafter ;  so  also  of  its 
jurisdiction  as  a  court  of  justice  ;^but  we  must  learn  to  think 
of  the  county  as  an  organized  unity  which  has  long  had  a 
common  life,  common  rights  and  common  duties.)  The  idea 
of  a  corporation  had  not  yet  made  its  way  into  English  law ; 
we  must  wait  for  the  fifteenth  century  for  that ;  had  it  been 
otherwise,  in  all  probability  the  county  of  the  thirteenth 
century  would  have  been  recognized  as  constituting  a  cor- 
poration, a  corporation  governed  by  the  body  of  freeholders 
in  the  county  court 

(ii)  The  county  or  shire  is  divided  into  hundreds.  The 
number  of  hundreds  in  a  shire  varies  very  greatly,  and  the 
size  of  the  hundreds  also  is  very  different  in  different 
parts  of  England.  Thus  there  are  5  in  Leicestershire,  9  in 
Bedfordshire,  17  in  Cambridgeshire  and  63  in  Kent  This 
division  of  the  land  into  districts  known  as  hundreds  is 
of  very  ancient  date — in  all  probability  it  has  existed  ever 
since  the  settlement  of  England  by  the  German  tribes.  Similar 
divisions  known  as  hundreds  are  found  in  various  parts  of  the 
continent.  It  seems  very  probable  that  the  German  tribe  was 
for  military  and  judicial  purposes  subdivided  into  groups,  each 
of  100  warriors,  and  that  our  English  hundreds  represent  the 
settlements  of  such  groups.  In  some  parts  of  England,  in 
the  north-east,  Yorkshire  and  Lincolnshire,  the  district  is 
called,  not  a  hundred,  but  a  wapentake — this  is  the  name 
both  of  the  district  and  of  its  court  or  assembly,  and  seems 

1  The  Forma  procedendi  in  placitis  coronae  regis  (Select  Charters^  p.  260)  is 
generally  regarded  as  the  origin  of  the  coroner's  office.  Dr  Gross  (History  of  the 
Office  of  Coroner >  1892,  and  Select  Cases  from  Coroners'  Rolls  >  1896)  claims  to  have 
found  earlier  references.  Maitland  was  unconvinced.  See  Eng.  Hist.  Rev.  viil, 
758,  and  History  of  English  Law,  I,  519. 


I  The  Hundred  Court  45 

to  point  to  the  time  when  the  assembly  was  still  a  body  of 
armed  warriors,  who  marked  their  approval  by  clashing  their 
weapons.  The  hundred  court  or  hundred  moot  of  the  Anglo- 
Saxon  time  seems  to  have  been  the  court  of  ordinary  juris- 
diction for  the  men  of  the  hundred ;  it,  like  the  shire  court, 
had  both  civil  and  criminal  jurisdiction ;  the  relation  of  the 
one  to  the  other  we  do  not  exactly  know,  but  perhaps  a  suitor 
was  not  entitled  to  go  to  the  shire-moot,  until  the  hundred 
moot  had  made  default  in  justice.  It  was  held  twelve  times] 
a  year. 

The  Conquest  did  not  destroy  the  hundred  court ;  the 
freeholders  of  the  hundred  were  bound  to  attend  it  and  to 
sit  in  it  as  judges.  But  in  the  twelfth  and  thirteenth  centuries, 
it  gradually  lost  business  owing  to  that  concentration  of  justice 
in  the  king's  courts,  of  which  mention  has  already  been  made. 
Before  the  end  of  Edward's  reign,  its  competence  in  personal 
actions  like  that  of  the  county  court  had  been  restricted  to 
cases  in  which  less  than  40  shillings  was  at  stake.  But  further, 
even  before  the  Conquest,  many  of  these  courts  had  fallen  into 
private  hands;  the  notion  that  all  jurisdiction  is  the  king's 
had  been  formed,  and  the  kings  had  freely  given  and  sold  the 
right  of  holding  courts.  To  a  great  landowner  this  right  was 
very  profitable,  it  enabled  him  to  keep  his  tenants  in  hand, 
and  we  must  further  remember  that  throughout  thd|  Middle 
Ages  jurisdiction  is  a  source  of  income — the  lord  of  a  court 
has  a  right  to  the  numerous  fines  and  forfeitures  which  arise 
out  of  the  doing  of  justice.  It  is  probable  that  in  the 
thirteenth  century  most  of  the  hundred  courts  had  come  into 
private  hands.  In  1278  Edward  made  a  vigorous  attempt  to 
recover  the  jurisdictions  which  had  become  proprietary;  he 
instituted  a  searching  inquiry  quo  warranto,  by  what  warrant, 
under  what  title,  the  lords  were  presuming  to  exercise  a  juris- 
diction which  prima  facie  belonged  to  the  king;  and  his 
justices  succeeded  in  recovering  a  great  deal  of  the  jurisdic- 
tion by  insisting  that  only  under  written  documents  or  by 
long  prescription  could  a  subject  claim  any  larger  jurisdiction 
than  that  of  the  ordinary  manorial  courts.  The  ordinary 
manorial  courts,  you  will  understand,  had  grown  up  under 
the  influence  of  feudal  ideas'  and  existed  side  by  side  with 


46  Constitutional  History  PERIOD 

the  more  ancient  courts  of  the  shire  and  the  hundred.  Also 
we  must  note  that  even  when  a  hundred  court  had  fallen  into 
private  hands,  the  king's  officer,  the  sheriff,  had  at  least 
generally  the  right  to  hold  it  twice  a  year  for  criminal  cases. 
Twice  a  year  it  was  the  sheriff's  turn  to  hold  these  courts, 
and  a  court  so  holden  by  him  came  to  be  known  as  the 
sheriff's  tourn.  When  such  courts  as  these  were  in  private 
hands,  they  were  generally  called  courts  leet.  The  court  baron 
and  the  customary  court  of  the  manor  are  the  outcome  of 
tenure ;  a  court  leet  on  the  other  hand  has  a  certain  criminal 
jurisdiction,  jurisdiction  in  cases  of  petty  offences,  and  it  is 
not  the  outcome  of  tenure — it  must  have  its  origin  in  a  royal 
grant,  real  or  supposed ;  this  doctrine  Edward  has  succeeded 
in  enforcing  by  means  of  his  quo  warranto  inquiry1. 

In  the  general  administration  of  the  law,  the  hundred  is 
an  important  unit.  In  particular  it  is  important  in  the  system 
of  trial  by  jury  introduced  by  Henry  II.  Each  hundred  is 
bound  to  present  its  malefactors ;  this  is  done  by  means  of  a 
jury  of  twelve.  It  is  a  responsible  unit  in  the  police  system ; 
from  an  early  time,  the  hundred  is  bound  to  pursue  criminals. 
Under  the  law  of  the  Conqueror,  if  a  man  be  found  slain  and 
the  slayer  be  not  produced,  the  hundred  is  fined,  unless  it  can 
prove  that  the  slain  man  was  an  Englishman ;  in  other  words, 
it  pays  a  miirdrum  or  murder  fine  unless  there  is  a  present- 
ment of  Englishry.  So  again  in  Edward's  day,  the  hundreds 
have  lately  been  put  under  constables  bound  to  see  that  the 
men  of  the  hundred  have  proper  armour  for  the  pursuit  of 
malefactors  and  the  repelling  of  enemies.  In  very  early  times 
we  hear  a  little  of  a  hundred's  ealdor,  and  it  is  possible  that 
he  was  an  elected  president  of  the  hundred  ;  but  after  the 
Conquest,  and  probably  before  the  Conquest,  he  has  disap- 
peared ;  the  sheriff  appoints  a  Serjeant  or  bailiff  (serviens, 
ballivus)  for  each  hundred,  who  presides  over  the  court,  unless 
that  court  be  in  private  hands,  and  is  bound  to  look  after  all 
the  king's  business  within  the  hundred,  the  collection  of  taxes, 
fines,  forfeitures  and  the  like. 


1  For  the  whole  subject  of  seigniorial  jurisdiction,  see  History  of  English  Law, 
vol.  I,  pp.  571—  94. 


I  The  Township  47 

(iii)  The  lowest  unit  in  the  governmental  system  is  the 
township  or  vill ;  the  Latin  word  used  to  describe  the  geo- 
graphical district  is  villa,  while  villata  describes  the  people 
of  the  villa  regarded  as  a  collective  whole.  The  township  as 
such  has  no  court  of  its  own,  but_il  has  many  police  duties 
to  perform.  It  has  duties  in  the  apprehension  of  criminals, 
and  can  be  fined  for  the  neglect  of  them.  When  the  king's 
justices  visit  the  county,  every  township  has  to  come  before 
them.  For  this  purpose,  the  township  is  represented  by 
its  reeve  (praepositus)  and  four  best  men  (quatuor  meliores 
homines),  and  its  opinion  is  constantly  taken  as  to  the 
guilt  or  innocence  of  accused  persons.  We  constantly  read 
that  the  township  of  (let  us  say)  Trumpington  (villata  de 
Trumpington)  says  that  A  is  guilty  of  the  death  of  B,  or  the 
like ; — if  it  says  what  is  untrue,  it  is  liable  to  be  amerced. 
The  representation  of  the  townships  in  the  local  courts  we 
can  trace  back  to  the  time  of  Henry  I ;  but  in  all  probability 
it  is  of  much  higher  antiquity1. 

Here  it  becomes  necessary  to  take  account  of  a  principle 
that  we  largely  noticed  when  speaking  of  feudal  tenure.  The 
jurisdictional  constitution  of  England  would  have  been  a 
much  simpler  matter  to  describe  had  there  not  grown  up 
by  the  side  of  the  ancient  courts  of  the  shire  and  the  hundred 
a  newer  set  of  courts  expressive  of  a  newer  principle — feudal 
courts  expressive  of  the  principle  that  every  lord  has  a  right 
to  hold,  a  court  of  and  for  his  tenants.  The  obligation  of 
attending  the  lord's  court,  the  obligation  of  doing  suit  of  court, 
is  one  of  the  incidents  of  feudal  tenure.  This  principle  has 
been  slowly  growing  up :  but  seems  an  admitted  truth  in  the 
twelfth  and  thirteenth  centuries. 

We  find  that  very  generally  these  feudal  courts  are  courts 
of  manors  ;  indeed  the  legal  theory  of  later  times  asserts, 
though  as  I  think  without  warrant,  that  only  as  part  of  a 
manor  could  such  a  court  exist.  Of  the  manor  then  we  are 
compelled  to  say  a  few  words.  We  find  (I  am  speaking  of 

1  It  would  appear  from  a  note  in  the  MS  that  Maitland  went  on  to  speak  of  the 
Township  as  a  fiscal  unit.  What  he  may  have  said  on  this  point  may  be  gathered 
from  Domesday  Book  and  Beyond^  p.  147;  and  the  History  of  English  Law,  I, 
pp.  560—7. 


48  Constittttional  History  PERIOD 

Edward  Fs  day)  that  England  is  full  of  manors.  We  cannot 
indeed  say  that  the  whole  land  is  parcelled  out  into  manors ; 
our  law  has  no  such  theory  as  that  all  land  is  part  of  some 
manor.  Still  manors  there  are  in  plenty.  The  name  manor, 
manerium,  has  seemingly  meant  in  the  first  instance  merely  an 
abiding  place  (manerium  a  manendo) ;  it  is  closely  connected 
with  mansio ;  it  has  been  used  more  or  less  vaguely  to  signify 
a  landed  estate ;  gradually  it  has  gained  a  legal  significance, 
it  has  come  to  imply  the  existence  of  a  court.  Now  if  we 
take  a  typical  manerium  of  the  time,  we  commonly  find  that 
there  is  in  the  first  place  a  quantity  of  demesne  land — land, 
that  is,  which  the  lord  of  the  manor  has  in  his  own  hand, 
which  is  in  every  sense  his  very  own.  Then  there  arc  lands 
which  are  held  of  him  by  freehold  tenants,  who  owe  him 
services :  some  of  them  perhaps  are  bound  to  do  the  military 
service  due  to  the  king,  others  pay  him  rent  in  money  or 
in  kind,  and  perhaps  are  bound  to  aid  him  in  his  ploughing : 
these  are  free  socagers.  Then  there  are  the  tenants  in  villein- 
age, who  owe  week  work  and  so  forth,  and  by  whose  services 
his  demesne  lands  are  cultivated.  All  these  lands  usually 
lie  together,  and  very  often  the  manor  is  coterminous  with 
the  township. 

For  the  free  tenants  of  his  manor,  the  lord  keeps  a  court ; 
generally  by  the  terms  of  their  tenure  they  are  bound  to 
attend  this  court  at  stated  intervals,  e.g.  in  every  third  week ; 
they  owe  suit  to  his  court,  debent  sectam  ad  curiam  manerii. 
This  idea  seems  indeed  to  -lie  at  the  root  of  the  term  socage, 
it  is  that  of  seeking  or  following;  the  socagers,  sokemanni^ 
are  bound  to  seek,  follow,  attend  the  court  of  the  lord.  The 
general  principle  seems  for  some  time  past  to  have  been  ad- 
mitted into  English  law — that  if  a  man  has  freehold  tenants, 
he  may  hold  a  court  for  them ;  he  may  bind  them  by  their 
tenures  to  do  suit  to  his  court.  Such  a  court  then  becomes 
the  proper  court  in  which  to  demand  any  of  the  freehold  land 
that  is  holden  of  the  manor — if  I  claim  against  you  land  which, 
as  we  both  admit,  is  holden  of  A,  then  I  must  begin  my 
action  in  A's  court,  if  A  has  one.  But  great  inroads  have 
been  made  upon  this  system  of  feudal  justice.  The  hand  of 
Henry  II  has  been  felt.  The  principle  just  expressed  has  not 


i         Court  Baron  and  Court  Customary     49 

been  abrogated,  but  its  importance  has  been  greatly  curtailed. 
In  one  way  and  another  it  has  become  very  possible  for  liti- 
gants to  evade  the  manorial  jurisdictions,  to  go  straight  to 
the  king's  court,  or  having  just  begun  the  action  in  the  manor 
court  to  get  it  removed  into  the  king's  court  by  a  royal  writ. 
Still  these  courts  exist,  and  in  Edward's  day  have  not  yet 
ceased  to  do  justice.  Now  such  a  court  is  constituted  by  the 
lord  and  his  freeholders — they  are  the  judges;  he  who  owes 
suit  of  court  is  bound  to  go  and  sit  there  as  a  judge — a 
question  relating  to  freehold  land  is  decided  by  the  peers  of 
the  tenure — the  freeholder  there  gets  the  judgment  of  his 
peers,  judicium  parium  stwrum.  In  later  times  such  a  court 
is  known  as  '  the  court  baron  of  the  manor/  a  phrase  which 
seems  at  first  merely  to  have  meant  the  lord's  court,  curia 
baronis. 

But  then  again  the  lord  had  what,  at  least  in  later  times, 
was  regarded  as  a  distinct  court  for  the  tenants  in  villeinage. 
This  was  called  the  customary  court,  and  the  principle  was 
established  that  in  this  court,  unlike  the  court  baron,  the  lord's 
steward  was  the  only  judge.  I  very  much  doubt  whether  this 
principle  was  established  in  the  thirteenth  century.  Many 
important  questions  depend  on  this  point ;  in  particular  the 
question  how  far  the  tenants  in  villeinage  were  protected  in 
their  holdings.  If  really  the  lord's  steward  was  the  only  judge, 
then  they  were  protected  only  by  the  lord's  sense  of  justice : 
it  was  otherwise  if  they  got  the  judgment  of  their  pares. 
However  you  must  know  the  orthodox  theory  that  the  lord's 
steward  was  the  sole  judge.  It  was  in  this  so-called  custom- 
ary court  that  all  transfers  of  the  lands  held  in  villeinage  were 
effected: — A  wishing  to  put  B  in  his  place,  surrendered  the 
land  into  the  lord's  hand,  who  admitted  B  as  tenant;  A  being 
dead,  the  lord  admitted  B  his  heir.  It  became  the  practice 
to  enrol  all  these  proceedings  ;  we  have  a  few  manor  rolls 
from  Henry  III,  a  considerable  number  from  Edward  I. 
Copies  of  the  entries  relating  to  their  lands  were  given  to  the 
tenants.  Gradually,  but  this  is  not  until  a  later  day,  the  term 
tenant  in  villeinage  gives  way  to  tenant  by  copy  of  court  roll, 
or  copyholder ;  the  copies  of  the  court  roll  are  the  evidences 
of  title  that  the  tenant  has.  To  look  forward  for  a  moment 

M.  4 


50  Constitutional  History  PERIOD 

in  order  to  finish  this  matter: — about  the  middle  of  the  fif- 
teenth century  the  king's  courts  begin  to  protect  the  copy- 
holder even  against  his  lord ;  the  services  again  become 
commuted  for  money  payments ;  after  the  discovery  of 
Mexico  the  value  of  money  falls  very  rapidly,  these  payments 
become  trifling ;  at  last  the  copyholder  is  almost  as  complete 
an  owner  of  land  as  is  the  freeholder : — but  it  is  long  indeed 
before  the  distinction  ceases  to  be  of  political  importance — 
not  until  1832  does  the  copyholder  vote  for  knights  of  the 
shire.  The  tenure  still  exists,  a  horrible  nuisance  as  you  will 
learn  at  large  some  day. 

It  should  be  noted  that  according  to  the  orthodox  legal 
theory  of  the  sixteenth  century  and  of  to-day,  there  can  be  no 
manor  without  two  freehold  tenants,  sufficient  tenants,  that  is, 
to  constitute  a  court  baron.  Whether  this  theory  be  of  ancient 
date,  I  very  much  doubt ;  as  a  matter  of  fact,  in  the  thirteenth 
century  there  are  many  maneria,  so-called  in  legal  documents, 
in  which  there  are  no  tenants  but  tenants  in  villeinage. 

Our  kings  have  succeeded  in  asserting  and  maintaining  the 
principle  that  the  feudal  jurisdiction  is  a  purely  civil  jurisdic- 
tion, that  the  fact  of  tenure  does  not  give  to  the  lord  any 
criminal  or  correctional  jurisdiction  over  his  tenants,  or  at  least 
over  such  of  them  as  are  free  men.  But  as  a  matter  of  fact, 
either  by  means  of  royal  grants  purchased  from  kings  in  want  of 
money,  or  by  means  of  usurpations  so  ancient  that  they  can  no 
longer  be  called  in  question,  very  many  of  the  lords  exercise 
some  of  that  criminal  and  police  jurisdiction  which  as  a  rule 
belongs  to  the  hundred  and  county  courts.  In  the  language 
of  later  law  books,  and  to  use  a  term  the  origin  of  which  is 
singularly  obscure,  they  have  established  courts  leet — courts 
which  take  cognizance  of  petty  misdemeanours.  Such  courts, 
however,  according  to  the  legal  theory  of  Edward's  time,  are  no 
natural  outcome  of  tenure,  like  courts  baron  and  customary 
courts,  but  must  be  claimed  by  grant  or  prescription1. 

As  a  matter  of  fact,  there  is  usually  a  close  connection 
between  the  manor  and  the  township.  Very  usually  the  same 
geographical  district  which  from  one  point  of  view  is  a  town- 

1  'The  lord  might  also  hold  a  court  for  his  honour,  for  all  his  immediate 
tenants-... The  Abbot  of  Ramsey  may  bring  to  his  court  at  Broughton  his  freehold 
tenants  from  seven  counties.'  Pollock  and  Maitland,  History  of  English  Laiv, 
vol.  I,  pp.  585—6. 


%I  Township  and  Vill  51 

ship,  is  from  another  point  of  view  a  manor.  Recent  historians 
see  in  the  township  a  community  which  is  far  more  ancient 
than  the  manor  ;  a  community  which,  so  far  as  English  history 
is  concerned,  we  may  call  primitive ;  a  group  of  men  or  of 
families  bound  together,  very  possibly  by  kinship,  which 
cultivates  land  by  a  system  of  collective  agriculture,  which  is 
or  has  been  the  owner  of  the  land,  which  to  a  large  extent 
regulates  its  own  affairs,  decides  how  the  land  shall  be  tilled, 
decides  whether  new  members  shall  be  admitted,  has  a  town- 
ship-moot in  which  such  affairs  are  settled,  though  it  has  not 
what  we  should  call  a  court  of  justice.  In  course  of  time,  we 
are  told,  this  primitive  community  has  in  general  fallen  under 
the  dominion  of  a  lord,  has  become  a  community  of  tenants, 
and  usually  of  tenants  who  hold  in  villeinage,  has  become 
a  manor.  But  still  for  the  purposes  of  public  law,  in  particular 
for  what  we  may  call  police  purposes,  it  is  as  a  township, 
and  not  as  a  manor,  that  the  state  takes  account  of  it,  and 
.when,  as  sometimes  happens,  the  vill  is  not  coincident  with 
the  manor,  it  is  the  township  and  not  the  manor  that  must 
answer  to  the  state  for  the  apprehension  of  criminals  and  so 
forth.  The  two  organisms  exist  side  by  side  ;  the  older  is  not 
thoroughly  absorbed  in  the  newer. 

All  theories,  however,  as  to  the  early  history  of  manors 
and  townships  are  beset  by  very  great  difficulties  which  at  the 
present  moment  cannot  be  explained.  What  at  present  con- 
cerns us  is  that  the  state  has  fixed  on  the  township,  not  the 
manor,  as  the  unit  responsible  for  good  order.  It  is,  I  think, 
the  theory  of  the  thirteenth  century  and  of  later  times  that  all 
England  is  divided  into  townships,  that  every  bit  of  land  lies 
in  some  vill,  while  it  is  not  the  theory  that  every  acre  of  land 
must  belong  to  some  manor.  Again,  and  this  may  help  to 
explain  the  co-existence  of  township  and  manor,  until  lately, 
until  1290  it  has  been  quite  possible  for  landowners  to  create 
new  manors  ;  they  could  not  be  allowed  to  alter  the  police 
system  of  the  country  by  the  creation  of  new  townships.  On 
the  other  hand,  as  a  matter  of  fact,  it  is  difficult  to  find  a  town- 
ship which  is  outside  the  manorial  system  ;  the  township  is 
represented,  we  have  said,  by  its  reeve  and  four  best  men,  but 
the  reeve  is  at  least  generally  a  manorial  officer,  a  villein 

4—2 


52  Constitutional  History  PERIOD 

elected  by  his  fellow  villeins,  who  is  answerable  to  the  lord  for 
looking  after  the  manor,  and  seeing  that  his  fellow  villeins  do 
their  due  services;  to  have  served  as  reeve  is  indeed  regarded 
as  a  presumptive  proof  of  personal  villeinage1. 

(iv)  Under  the  name  of  boroughs  a  certain  number  of 
communities  have  attained  to  a  higher  stage  of  organization 
than  that  of  the  generality  of  townships.  But  this  is  a  matter 
of  degree;  at  no  time  before  the  year  1835  can  we  say  that 
the  constitution  of  the  various  boroughs  is  the  same  through- 
out England,  or  even  that  it  conforms  to  any  one  type.  There 
hardly  can  be  a  history  of  the  English  borough,  for  each 
borough  has  its  own  history.  That  history  largely  depends 
on  the  charters  that  it  has  been  able  to  obtain  from  the  king 
or  from  other  lords,  and  the  liberality  of  the  charter  has 
depended  on  the  price  that  the  burghers  were  ready  to  pay 
for  it ;  municipal  privileges  were  only  to  be  obtained  for 
valuable  consideration.  At  the  end  of  the  thirteenth  century, 
however,  the  time  of  which  we  are  speaking,  the  privileges  of 
the  boroughs,  the  institutions  which  make  it  something 
different  from  a  mere  township,  may  be  summed  up  under  the 
following  heads. 

(a)  Immunity  from  the  jurisdiction  of  the  ordinary  local 
courts.     The  borough  has  aspired  to  be  a  hundred  all  by 
itself— to  be  exempt  therefore  out  of  the  jurisdiction  of  any 
hundred  court     When  the  king's  justices  visit  the  county,  the 
borough  is  represented  before  it  not  by  the  reeve  and  four 
men,  but  by  a  jury  of  twelve,  just  as  every  hundred  in  the 
county  is  represented  by  a  jury  of  twelve.     Occasionally  more 
extensive  immunities  have   been  conferred,  the  borough  is 
exempted  out  of  the  jurisdiction  of  the  county  court.     Some 
of  the  richer  and  larger  boroughs  have  gone  even  further  than 
this — it  has  been  granted  to  them  that  their  burgesses  may 
sue  and  be  sued  only  in  their  own  courts,  and  thus  one  cannot 
sue  a  burgess  even  in  the  king's  court 

(b)  Coupled  with  this  immunity  is  the  privilege  of  having 
courts  of  its  own,  usually  with  the  jurisdiction  of  a  hundred 
court ;  but  the  constitution  of  these  courts  varies  greatly.    In 

1  These  views  are  substantially  unchanged  in  the  History  of  English  Law, 
vol.  I,  pp.  594—634. 


I  Burghal  Privilege  53 

some  cases  the  borough  has  already  got  itself  free  of  the 
manorial  system,  and  its  courts  are  presided  over  by  elected 
officers;  in  other  cases  the  borough  is  still  a  manor  and  its 
court  is  the  lord's  court  held  under  the  presidency  of  his 
steward. 

(c)  Very  frequently  indeed  the  borough  has  by  this  time 
purchased  the  right  of  having  its  own  elective  officers — ballivi, 
praepositi)  bailiffs  or  reeves,  who  stand  on  somewhat  the  same 
level  as  the  bailiffs  of  the  hundreds  whom  the  sheriff  appoints. 
Often  again  the  burgesses  have  their  own  coroners,  and  in  this 
respect  are  free  from  the  organization  of  the  county.v    In  some 
cases  the  burgesses  have  already  an  elected  mayor  with  ampler 
rights  and  powers  than  those  of  a  bailiff  or  reeve. 

(d)  Very  generally  the  burgesses  have  acquired  the  right 
to  collect  the  taxes  within  the  borough,  and  for  this  purpose 
to  exclude  the  sheriff.     For  the  ancient  taxes  they  compound 
with  a  lump  sum  at  the  Exchequer — they  are  thus  said  to 
hold  the  borough  in  farm. 

(e)  Very  generally  also  the  borough  constitution  is  inter- 
woven  with  that  of  a   merchant  guild,  an    association    of 
merchants  which  has  by  charter  obtained  the  power  of  regu- 
lating trade.     In  some  of  the  greater  boroughs  besides  the 
merchant-guild,  there  are   trade-guilds,  or  craft-guilds,   the 
weavers'  guild,  the  tailors'  guild  and  so  forth.     A  constitution 
in  which  the  merchant-guild  is  the  ruling  body  of  the  town,  is 
gradually,  and   in  very  various  stages,  supplanting  a  more 
ancient  constitution  which  was  simply  that  of  a  privileged 
township  or  privileged  manor. 

The  city  of  London  resembles  rather  a  shire  than  a  town- 
ship— already  in  rfenry  I's  day  it  has  got  so  far  as  to  have 
sheriffs  of  its  own,  nay  more,  it  holds  the  county  of  Middlesex 
in  farm;  its  elective  sheriffs  act  as  sheriff  of  Middlesex1.  To 
be  utterly  and  totally  exempt  out  of  the  shire  organization,  to 
be  counties  of  themselves,  to  have  sheriffs  of  their  own,  is  one 
of  the  ends  for  which  the  more  ambitious  boroughs  are 
striving,  though  in  Edward  I's  day  none  save  London  has 
attained  it. 

1  The  Charter  of  Henry  i  to  London  ib  panted  by  Stubbs,  Select  Charters^ 
p.  108. 


54  Constitutional  History  PERIOD 

Boroughs  which  are  also  bishop's  sees  are  distinguished  as 
cities  (civitates),  and  their  burgesses  are  citizens.  The  term 
city  tells  us  no  more  than  this,  it  does  not  point  to  any  higher 
degree  of  municipal  organization  or  independence  than  does 
the  term  borough  (burgus). 

In  later  times,  in  the  fifteenth  century  and  onwards,  we 
can  arrive  at  a  legal  definition  of  a  borough;  the  notion  of  a 
corporation  has  then  been  formed,  a  fictitious  person,  a  juristic 
person,  which  has  rights  and  duties  which  are  quite  distinct 
from  the  rights  and  duties  of  its  members.  But  this  notion, 
though  developed  in  the  Canon  Law,  only  made  its  way  into 
English  law  by  slow  degrees1.  The  greater  boroughs,  however, 
of  Edward's  reign  have  already  in  substance  attained  to  all  or 
almost  all  of  those  distinctive  characteristics  which  the  later 
lawyers  regarded  as  essential  to  corporate  unity.  These 
characteristics  are  five— the  right  of  perpetual  succession,  the 
power  to  sue  and  be  sued  as  a  whole  and  by  the  corporate 
name,  the  power  to  hold  lands,  the  right  to  use  a  common 
seal,  and  the  power  of  making  by-laws.  Substantially  these 
characteristics  exist,  but  as  yet  they  have  not  been  worked 
into  a  theory  by  the  conception  of  a  fictitious  person,  who  is 
immortal,  who  sues  and  is  sued,  who  holds  lands,  has 
a  seal  of  his  own,  who  makes  regulations  for  those  natural 
persons  of  whom  he  is  composed.  The  question  what  is 
the  constitution  of  this  fictitious  person,  how  he  is  made  up 
out  of  natural  persons,  has  not  yet  arisen.  The  borough  is 
as  yet  no  more  a  corporation,  no  less,  than  is  the  township, 
the  hundred,  or  the  county;  and  if  the  borough  may  be  spoken 
of  as  having  rights  and  duties,  as  breaking  the  law  and  being 
punished,  this  is  true  also  of  the  county,  the  hundred,  and  the 
township. 

D.     Central  Government. 

We  turn  to  the  central  government,  the  king  and  his 
councils.  This  we  are  wont  to  regard  as  the  main  theme 
of  constitutional  law.  We  have  here,  however,  postponed  it, 

1  The  idea  is  worked  out  in  Maitiand's  Township  and  Borough,  Cambridge, 
1897. 


I  Central  Government  55 

for  it  can  hardly  be  understood  without  some  preliminary 
knowledge  of  the  land  law  and  of  the  local  institutions.  Now 
at  the  end  of  Edward's  reign  we  find  several  different  central 
institutions.  In  the  first  place  there  is  the  kingship ;  this  is 
the  centre  of  the  centre.  Then  there  is  that  assembly  of  the 
three  estates  of  the  realm,  clergy,  lords  and  commons,  to  which  / 
the  name  parliamentum  is  coming  to  be  specifically  appro- 
priated. Then  again  the  king  has  a  council  (concilium}  which 
is  distinct  from  parliament,  and  he  has  high  officers  of  state, 
a  chancellor,  treasurer,  constable,  marshal  and  so  forth.  Then 
again  he  has  courts,  courts  which  in  a  peculiar  sense  are  his 
courts:  there  is  the  King's  Bench,  the  Common  Bench,  the 
Exchequer.  All  these  now  are  distinct  and  have  their  different 
functions;  but  looking  back  a  little  way  we  see  that  they 
have  not  always  been  distinct,  that  a  difference,  for  instance, 
between  the  king's  council  (concilium  Regis)  and  the  king's 
court  (curia  Regis)  has  but  slowly  been  established.  We  will 
take  therefore  a  brief  retrospect  of  the  history  of  our  central 
institutions  as  a  whole. 

(i)     Before  1066. 

Among  the  German  tribes  described  by  Tacitus  a  kingship 
was  by  no  means  universal.  In  some  cases  the  highest  officers 
axe  principes  elected  by  the  tribe  in  its  popular  assembly  ;  in 
other  cases  the  tribe  has  already  a  rex ;  he  also  is  elected, 
chosen  it  would  seem  because  of  his  noble  descent,  but  his 
power  seems  to  be  very  limited.  Our  own  forefathers  when 
they  first  attacked  the  province  of  Britain  seem  to  have  had  no 
kings  ;  their  leaders  were  ealdormen,  in  whom  we  may  recog- 
nize the  principes  of  Tacitus.  But  the  kingship  appears  veiy 
soon  ;  the  process  of  conquering  a  new  country  would  be  very 
favourable  to  its  development.  The  small  states  which  were 
afterwards  to  coalesce  into  the  kingdom  of  England,  seem  in 
other  respects  to  have  resembled  the  states  described  by 
Tacitus.  Each  had  its  popular  assembly,  the  assembly  of  all 
free  men,  its  principes  or  ealdormen  elected  in  that  assembly, 
and  its  king.  The  eaidorman  presides  over  zpagus  or  district; 
the  ealdormen,  under  the  king's  presidency,  meet  to  determine 
the  minor  affairs  of  the  state,  but  the  weightier  matters  are 


56  Constitutional  History  PERIOD 

discussed  in  the  folk-moot: — de  minoribus  rebus  principes 
consultant,  de  majoribus  omnes. 

Gradually  by  conquest  greater  kingdoms  are  formed,  at 
last  the  English  kingdom.  The  way  for  this  was  prepared 
by  the  acceptance  of  the  Christian  faith  and  the  organization 
of  an  English  church.  The  old  state  which  has  thus  been 
absorbed  in  a  larger  state  does  not  lose  its  unity,  it  now  exists 
as  a  shire  of  the  new  kingdom;  sometimes  the  members  of  its 
once  royal  house  continue  to  be  its  ealdormen  ;  its  folk-moot 
still  exists,  but  now  as  a  shire-moot,  the  county  court  of  later 
days.  The  national  assembly  is  not  a  folk-moot,  not  an 
assembly  of  the  whole  people,  but  a  witenagemot,  an  assembly 
of  the  wise,  the  sapientes.  This  assembly  when  we  look  back 
at  it  seems  a  very  unstable  and  indefinite  body.  It  comprises 
the  bishops,  and  towards  the  end  of  the  period  we  often  find 
a  number  of  abbots  present  It  comprises  also  the  ealdormen 
of  the  shires;  their  number  varies  according  as  the  shires  are 
administered  singly  or  in  groups.  Besides  these  there  are 
a  number  of  persons  who  generally  describe  themselves  as 
ministri  Regis,  or  king's  thanes,  and  this  number  increases  as 
time  goes  on.  It  can  never  have  been  a  very  large  assembly. 
'  In  a  witenagemot  held  at  Luton  in  November,  931,  were  the 
2  archbishops,  2  Welsh  princes,  17  bishops,  15  ealdormen, 
5  abbots  and  59  ministri.  In  another,  that  of  Winchester,  in 
934,  were  present  the  2  archbishops,  4  Welsh  kings,  17  bishops, 
4  abbots,  12  ealdormen  and  52  ministri.  These  are  perhaps 
|the  fullest  extant  lists1/  The  question  arises,  who  were  these 
\nmistri  or  king's  thanes  ? 

The  princeps  of  Tacitus  has  around  him  a  train  of  warlike 
companions  (comites).  It  is  the  duty  of  all  men  to  fight ;  the 
host,  as  is  often  said,  is  the  nation  in  arms ;  but  these  comites 
are  more  especially  bound  to  fight  and  to  fight  for  their  leader; 
this  is  their  glory ;  it  gives  them  a  high  place  in  the  estima- 
tion of  the  community.  We  can  recognize  them  in  t\\sgesith, 
the  companion,  of  our  own  kings,  a  name  which  gradually 
gives  place  to  that  of  thane,  or  servant,  in  Latin  minister. 
A  nobility  by  service  is  thus  formed,  and  the  thegnhood  begins 

1  Stubbs,  Constitutional  History,  vol.  I,  §  53. 


I  Growth  of  Feudalism  57 

to  be  connected  with  the  holding  of  land  and  to  be  hereditary. 
The  unappropriated  land,  the  land  of  the  nation,  the  folk-land, 
forms  a  great  fund  whereout  the  king,  with  the  consent  of  the 
wise,  can  reward  his  faithful  followers1.  The  thane  begins  to 
look  somewhat  like  the  tenant  by  knight  service  of  later  times, 
and  the  king's  thane  (for  an  ealdorman  may  have  thanes)  begins 
to  look  like  a  tenant  in  chief.  The  definite  idea  of  a  military 
tenure,  A  tenet  de  Rege  per  servicium  unius  militis>  is  not 
formed  before  the  Conquest;  but  to  an  extent,  and  in  a 
manner  that  is  now  very  dark  to  us,  the  military  service  due 
comes  to  be  connected  with  and  measured  by  landholding2. 
It  is  well  to  see  that  there  were  powerful  economic  causes  in 
which  this  incipient  feudalism  had  its  roots.  As  agriculture 
becomes  higher,  as  the  distribution  of  property  grows  more 
unequal,  as  the  art  of  war  is  developed,  it  becomes  more  and 
more  convenient  that  some  should  fight  while  others  till  the 
soil :  there  is  a  division  of  labour,  a  specialization  of  employ- 
ments. The  work  of  feudalism  goes  on  in  the  lowest  strata  of 
society  as  well  as  in  the  highest  While  the  king  is  gathering 
round  him  a  body  of  armed  vassals  who  are  great  landowners 
because  they  are  vassals,  the  smaller  men  are  putting  them- 
selves under  the  protection  of  lords,  are  content  that  their 
lords  should  do  the  necessary  fighting  while  they  till  the  lord's 
land.  Dark  as  is  the  early  history  of  the  manor,  we  can  see 
that  before  the  Conquest  England  is  covered  by  what  in  all 
substantial  points  are  manors,  though  the  term  manor  is 
brought  hither  by  the  Normans.  Furthermore,  in  the  interests 
of  peace  and  justice,  the  state  insists  that  every  landless  man 
shall  have  a  lord,  who  will  produce  him  in  court  in  case  he  be 
accused.  Slowly  the  relation  of  man  and  lord  extends  itself, 
and  everywhere  it  is  connected  with  land.  The  king's  thanes 
then  are  coming  to  be  the  king's  military  tenants  in  chief. 


1  The  term  folk-land  is  now  regarded  not  as  denoting  public  land,  but  as 
*land  held  without  written  title  under  customary  law.'    History  of  English  Law^ 
vol.  I,  p.  62.     The  point  was  proved  by  Mr  Paul  VinogradofHwn  1893.     Eng. 
Hist.  Rev.  vill,  1—17.     This  does  not  imply  that  there  was  no  unappropriated 
land,  only  that  it  was  not  ca\\e&  folk-land. 

2  Maitland  throws  some  light  upon  this  dark  question  in  Domesday  Book  and 
Beyond^  pp.  307—9. 


58  Constitutional  History  PERIOD 

We  cannot  then  arrive  at  any  strict  theory  as  to  the  con- 
stitution of  the  witenagemot  It  is  an  assembly  of  the  great 
folk  ;  when  there  is  a  strong  king  on  the  throne  it  is  pretty 
much  in  his  power  to  say  how  it  shall  be  constituted,  to 
summon  whom  he  will ;  when  the  king  is  weak,  it  is  apt  to 
become  anarchical.  It  has  even  been  contended  by  Mr 
Freeman  that  every  free  man  had  in  theory  a  right  to  attend 
it1;  but  it  is  difficult  to  believe  that  a  theory  was  maintained 
which  was  so  flagrantly  inconsistent  with  the  actual  facts.  At 
all  events  it  is  clear  that  really  this  assembly  was  a  small 
aristocratic  body,  tending  always  to  become  more  aristocratic. 
The  bishops  constitute  its  most  permanent  and  at  times  its 
most  powerful  element 

Such  then  is  the  national  assembly,  and  at  least  on  paper 
its  powers  seem  vast ;  it  can  elect  kings  and  depose  them ;  the 
king  and  witan  legislate ;  it  is  with  the  counsel  and  consent 
of  the  witan  that  the  king  publishes  laws  ;  the  king  and  witan 
nominate  the  ealdormen  and  the  bishops,  make  grants  of  the 
public  lands,  impose  taxes,  decide  on  peace  and  war,  and 
form  a  tribunal  of  last  resort  for  causes  criminal  and  civil.  It 
is  a  supreme  legislative,  governmental,  and  judicial  assembly. 

Such  terms  as  these,  however,  may  easily  raise  a  false 
notion  in  modern  minds.  The  whole  business  of  a  central 
government  is  as  yet  but  small.  Legislation  is  no  common 
event ;  as  already  said,  all  the  extant  dooms  of  kings  and 
witan  would  make  but  a  small  book.  Taxation  is  still  more 
uncommon,  of  anything  that  can  be  called  by  that  name  we 
hear  nothing  until  late  in  the  day.  The  rents  and  profits  of 
the  public  lands,  the  profits  of  the  courts,  afford  a  sufficient 
revenue  for  such  central  government  as  there  is.  The  Dane- 
geld  of  Ethelred's  reign  is  perhaps  the  first  tax;  in  991,  994, 
1002,  1007,  1011,  a  tribute  was  raised  to  buy  off  the  Danish 
invaders.  Lastly,  though  we  have  clear  proof  that  the  witen- 
agemot acted  as  a  court  of  justice,  it  was  no  ordinary  court 
for  ordinary  men ;  recourse  to  it  was  not  encouraged  ;  the 
normal  courts  were  the  local  courts,  and  suitors  were  forbidden 
to  seek  the  royal  audience  until  justice  had  failed  them  in  the 
hundred  and  the  shire. 

1  £ss<ys,  4th  series,  pp.  444—7. 


I  The  Kingship  59 

Meanwhile  the  king's  splendour  grew  as  the  extent  of  his 
territory  grew.  From  being  merely  the  nation's  leader,  he 
became  the  lord  of  all  men,  and  we  may  almost  say  the  lord 
of  all  land  and  lord  of  all  justice.  While  as  yet  almost  all 
offences  can  be  atoned  for  by  money  payments,  treason 
becomes  an  utterly  inexpiable  offence.  The  national  land 
becomes  always  more  and  more  the  king's  land,  and  the  king's 
favour  is  thus  the  source  of  honour  and  of  wealth.  What  is 
more,  justice  is  regarded  as  being  the  king's,  he  can  grant 
jurisdiction  to  whom  he  pleases,  indeed  a  grant  of  land  now 
usually  involves  a  grant  of  jurisdiction  ;  the  hundred  courts 
come  into  private  hands  and  manorial  courts  arise.  This,  the 
most  dangerous  element  of  feudalism,  is  rapidly  developed 
towards  the  end  of  our  period ;  in  particular  Edward  the 
Confessor  seems  to  have  been  lavish  in  his  grants  of  juris- 
diction1. 

We  have  said,  however,  that  the  king's  splendour  grows, 
rather  than  that  his  power  grows.  Whether  he  will  be 
powerful  or  no  depends  now  very  much  on  his  own  personal 
character.  That  lordship  of  land  and  of  justice  of  which  we 
have  just  spoken,  may  be  as  easily  a  cause  of  weakness  as  of 
strength.  Every  grant  that  he  makes  of  land  or  of  jurisdiction 
raises  up  a  new  vassal,  and  unless  the  king's  hand  be  heavy 
upon  his  vassals  they  may  become  too  strong  for  him  ;  he  may 
end  by  being  like  the  king  of  the  French,  primus  inter  pares, 
the  nominal  head  of  a  turbulent  baronage.  The  growth  of 
large  estates  and  private  jurisdictions  surrounds  the  great 
thanes  with  tenants  and  retainers  bound  to  them  by  a  close 
bond  of  fealty.  Every  man,  it  is  true,  can  be  called  upon  to 
swear  allegiance  to  the  king ;  but  the  king  is  distant  and  the 
lord  is  near. 

Even  the  fact  that  to  the  very  end  of  the  period  the  king- 
ship is  not  strictly  hereditary,  but  elective — that  on  the  Con- 
fessor's death  the  witan  can  elect  Harold — that  a  power  also 
of  deposing  a  king  has  been  exercised  as  late  as  the  days  of 
Ethelred  the  Unready,  is  really  rather  a  mark  of  constitutional 
weakness,  of  a  dangerous  feudalism,  than  of  popular  liberty; — 

1  Domesday  Book  and  Beyond,  p.  87  ff. 


60  Constitutional  History  PERIOD 

the  crown  itself  may  become  the  prize  of  the  rebellious  vassal. 
The  really  healthy  element  in  the  constitution  as  it  stood  on 
the  eve  of  the  Conquest  lies  here — that  as  yet  no  English  king 
has  taken  on  himself  to  legislate  or  to  tax  without  the  counsel 
and  consent  of  a  national  assembly,  an  assembly  of  the  wise, 
that  is  of  the  great.  This  is  a  valuable  barrier  against  mere 
despotism,  though  what  the  national  assembly  shall  be  a 
strong  king  can  decide  for  himself. 

(ii)     1066-1154. 

William  of  Normandy  claimed  the  throne  as  the  heir 
nominated  by  the  Confessor.  That  title  the  English  did  not 
admit;  it  had  not  been  law  among  them  that  a  king  might 
appoint  his  successor.  Harold  was  chosen  king.  The  battle 
of  Hastings  was  fought.  William  proceeded  to  seek  the 
recognition  of  the  divided  and  dismayed  witan.  He  was 
chosen  and  was  crowned,  swearing  that  he  would  hold  fast 
right  law,  and  utterly  forbid  rapine  and  unrighteous  judgment. 
It  is  needful  to  remember  that  neither  of  his  sons  came  to  the 
throne  by  what  we  should  think  or  even  by  what  would  then 
have  been  thought  a  good  hereditary  title,  needful,  for  to  this 
we  probably  owe  the  preservation  of  a  certain  form  and 
semblance  of  free  government.  Rufus  excluded  Robert  and 
was  willing  to  make,  though  also  to  break,  the  most  lavish 
promises.  Henry  again  excluded  Robert ;  he  was  hastily  elected 
by  a  small  knot  of  barons,  took  the  oaths  which  Ethelred  had 
taken,  and  purchased  support  by  a  charter  of  great  importance, 
for  it  was  the  model  on  which  the  charter  of  1215  was  framed. 
'Know  ye/  it  begins,  'that  by  the  mercy  of  God  and  the 
common  counsel  of  the  barons  of  the  whole  realm  of  England 
I  have  been  crowned  king  of  the  same  realm.'  Henry  dead, 
the  crown  was  seized  by  Stephen  of  Blois,  to  the  exclusion,  as 
we  should  say,  of  the  Empress  Matilda.  He  was  obliged  to 
make  large  promises  at  his  coronation,  and  in  1 136  to  issue  an 
important  charter,  important  rather  as  a  precedent  than  as 
anything  else,  for  a  strong  party  favoured  the  Empress  and 
the  feudal  anarchy  broke  loose.  In  fact  we  may  regard  our 
Norman  kings  as  despotic ;  when  there  is  not  despotism  there 
is  anarchy;  still  a  certain  semblance  of  another  form  of  govern- 


i  The  Tenants  in  Chief  61 

ment  is  maintained,  government  by  a  king  who  rules  with  the 
counsel  and  consent  of  his  barons. 

Now  the  typical  feudal  king,  if  we  may  make  such  an 
abstraction,  should  have  a  court  consisting  of  his  immediate 
vassals,  his  tenants  in  chief.  How  much  or  how  little  he  will 
be  influenced  by  them,  whether  they  will  be  utterly  powerless 
or  whether  he  will  be  but  the  first  among  equals  is  a  different 
question — but  such  control  over  him  as  there  is  will  be  the 
control  of  a  court  thus  formed.  It  would  seem  then  according 
to  this  idea  that  the  court  of  the  English  king  should  have 
consisted  of  his  tenants  in  chief.  But  the  tenants  in  chief 
were  in  England  very  numerous :  this  was  the  result  of  the 
Conquest  and  the  subsequent  grants  of  lands  deemed  forfeited 
— they  were  not  just  a  few  rulers  and  owners  of  vast  provinces ; 
there  were  a  large  number  who  held  single  knight's  fees  and 
single  manors  holden  directly  of  the  king.  This  should 
be  remembered,  for  it  affects  the  constitution  both  of  the 
House  of  Lords  and  of  the  House  of  Commons  in  later 
days.  The  body  of  military  tenants  in  chief  was  from  the 
beginning  a  very  heterogeneous  body.  If  it  included  great 
feudatories  with  vast  possessions  and  numerous  vassals,  who 
might  aspire  to  play  the  part  of  sovereign  princes,  it  included 
also  a  large  number  of  men  who  were  by  no  means  very  rich 
or  very  powerful.  This  must  have  rendered  it  practically 
impossible  that  the  king's  court  should  have  become  a  powerful 
definite  body  formed  strictly  on  feudal  lines.  The  Conqueror 
we  find  holds  an  ordinary  court  three  times  a  year  at  the  three 
great  festivals.  '  Thrice  a  year/  says  the  Saxon  Chronicle, 
'  King  William  wore  his  crown  every  year  he  was  in  England ; 
at  Easter  he  wore  it  at  Winchester,  at  Pentecost  at  Westminster, 
and  at  Christmas  at  Gloucester;  and  at  these  times  all  the 
men  of  England  were  with  him — archbishops,  bishops  and 
abbots,  earls,  thegns  and  knights.'  A  similar  usage  was  main- 
tained by  his  sons  though  the  rotation  thus  described  was 
not  strictly  observed.  When  however  we  ask  who  actually 
attended  ?  still  more  if  we  ask  who  had  a  right  to  attend  ? 
we  get  a  very  uncertain  answer.  The  passage  in  the  Chronicle 
to  which  I  have  just  referred  is  a  specimen  of  the  vague  state- 
ments which  are  all  that  we  get — all  the  men  of  England  were 


62  Constitittional  History  PERIOD 

with  him — archbishops,  bishops  and  abbots,  earls,  thanes  or 
knights  ;  often  we  are  put  off  with  some  such  word  as  proceres^ 
which  has  a  very  uncertain  sound.  The  archbishops,  bishops 
and  abbots  attend  by  virtue  of  their  official  wisdom,  but  the 
theory  seems  always  to  gain  ground  that  they  are  there  because 
they  hold  baronies  of  the  king — at  any  rate  they  become 
tenants  in  chief  and  so  for  them  there  is  certainly  a  place. 
As  to  the  other  persons  who  come,  so  far  as  there  is  any  legal 
theory,  it  must  be  that  they  are  the  tenants  in  chief.  Probably 
it  is  fully  acknowledged  that  the  king  may  lawfully  insist  on 
the  presence  of  every  tenant  in  chief — probably  it  is  the  general 
opinion  that  every  military  tenant  in  chief  has  a  right  to  be 
there.  But  we  ought  to  remember  that  attendance  at  court 
is  no  coveted  privilege.  We  must  be  careful  not  to  introduce 
the  notions  of  modern  times  in  which  a  seat  in  parliament  is 
eagerly  desired.  This  would  render  a  good  deal  of  history 
unintelligible.  For  the  smaller  men  attendance  at  court  is  a 
burden  of  which  they  are  very  ready  to  relieve  themselves  or 
be  relieved,  and  this  is  true,  be  the  court  in  question  the 
hundred  court,  or  the  county  court,  or  the  king's  court. 

What  seems  to  us  from  the  modern  point  of  view  a  valuable 
political  right,  seemed  to  those  who  had  it  an  onerous  obliga- 
tion. The  great  baron  again  had  no  particular  desire  to  be 
about  his  lord's  court ;  if,  as  was  too  often  the  case,  he  was 
not  very  faithful  to  his  lord,  his  lord's  court  was  the  very  last 
place  in  which  he  would  wish  to  be.  In  point  of  fact  we 
do  not  hear  from  the  Norman  reigns  any  assertion  of  an 
individual's  right  to  attend  the  court.  The  king  insists  on 
bringing  around  him  the  most  powerful  of  his  tenants  in 
chief,  and  such  meetings  are  to  him  a  source  of  strength.  As 
Mr  Dicey  has  pointed  out  in  his  Essay  on  the  Privy  Council 
it  is  the  strong  king  who  habitually  brings  his  magnates 
round  him.  He  thus  keeps  his  eye  upon  them,  and  it 
strengthens  his  hands  in  dealing  with  the  refractory  that  his 
measures  are  taken  with  the  counsel  and  consent  of  their 
peers. 

Under  the  Norman  kings  counsel  and  consent  may  have 
been  little  more  than  formality,  and  the  king  may  have 
exercised  the  power  of  summoning  only  such  of  his  tenants 


I  The  Curia  Regis  63 

in  chief  as  he  pleased — still  such  few  legislative  acts  as  we 
have  from  this  period  are  done  with  the  counsel  and  consent 
of  the  great.  Thus  the  ordinance  which  removed  the  bishops 
from  the  secular  courts  and  recognized  their  spiritual  juris- 
diction was  made  with  the  counsel  of  the  archbishops,  bishops, 
abbots,  and  all  the  princes  of  the  kingdom.  But  anything 
that  could  be  called  legislation  was  seemingly  very  rare.  The 
right  of  the  council  to  join  in  taxation  was  perhaps  admitted 
in  theory.  Henry  the  First  speaks  of  an  aid  which  had  been 
granted  to  him  by  his  barons  :  but  there  is  nothing  to  show 
that  any  such  consent  was  asked  when  the  Danegeld  was 
levied  as  repeatedly  it  was,  and  the  king  exercised  the  power 
of  tallaging  his  demesne  lands  of  his  own  free  will.  A  court 
of  this  nature  was  again  the  highest  court  of  judicature,  for 
the  great  cases  and  the  great  men.  It  was  in  such  courts  that 
the  king  nominated  bishops  until  the  right  of  canonical  election 
was  conceded  by  Henry  I,  and  even  then  the  election  took  place 
in  the  royal  court.  The  ceremony  of  conferring  earldoms  and 
knighthood  and  receiving  homage  were  performed  there; 
questions  of  general  policy,  of  peace  and  war,of  royal  marriages 
and  so  forth  seem  to  have  been  debated. 

But  a  smaller  body  collects  round  the  king,  a  body  of 
administrators  selected  from  the  ranks  of  the  baronage  and 
of  the  clergy.  At  its  head  stands  the  chief-justiciar,  the  king's 
right-hand  man,  his  viceroy  when  the  king  is,  as  often  he  is, 
in  his  foreign  dominions.  There  is  also  the  king's  chancellor, 
the  head  of  a  body  of  clerks  who,  do  all  the  secretarial  work  ; 
there  are  the  great  officers  of  the  royal  household  and  others 
whom  the  king  has  chosen.  Under  Henry  I  this  body  becomes 
organic  ;  the  orderly  routine  of  administration  begins  even  to 
be  a  check  on  the  king's  power ;  Stephen  discovers  this  when 
he  quarrels  with  the  ministerial  body.  This  body  when  it  sits 
for  financial  purposes  constitutes  the  Exchequer  (Scaccarium), 
so  called  from  the  chequered  cloth  which  lies  on  the  table, 
convenient  for  the  counting  of  money.  Also  it  forms  a 
council  and  court  of  law  for  the  king,  it  is  curia  Regis,  the 
king's  court,  and  its  members  &rejustitiarii>  justiciars  or  justices 
of  this  court.  Under  Henry  I  they  are  sent  into  the  counties 
to  collect  taxes  and  to  hold  pleas ;  they  are  then  justitiarii 


64  Constitutional  History  PERIOD 

errantes,  justitiarii  itinerantes.  During  the  whole  period  the 
term  curia  Regis  seems  loosely  used  to  cover  both  the  sessions 
of  this  permanent  body  and  the  assembly  of  the  tenants  in 
chief;  the  former  may  perhaps  be  regarded  as  a  standing 
committee  of  the  latter. 

(iii)     1154-1216. 

The  reigns  of  the  first  three  kings  of  the  Angevin  house 
form  another  and  a  fairly  definite  period  in  the  history  of  the 
national  assembly — which  ends  with  the  Great  Charter  of 
1215.  In  its  fourteenth  clause  we  obtain  for  the  first  time  some- 
thing that  may  be  called  a  distinct  definition  of  that  body. 
The  twelfth  clause  declares  that  no  scutage  or  aid  shall  be 
imposed  in  our  realm  save  by  the  common  counsel  of  our 
realm,  nisi  per  commune  consilium  rcgni  nostri — except  the 
three  ordinary  feudal  aids  for  redeeming  the  king's  body 
from  captivity,  for  knighting  his  eldest  son,  and  for  marry- 
ing his  eldest  daughter.  There  follows  this — 'And  for  the 
purpose  of  having  the  common  counsel  of  the  realm  for 
assessing  an  aid  except  in  the  three  cases  aforesaid  we  will 
cause  to  be  summoned  the  archbishops,  bishops,  abbots, 
earls  and  greater  barons  (majores  barones)  singly  (sigitlatim) 
by  our  letters ;  and  besides  we  will  cause  to  be  summoned  by 
our  sheriffs  and  bailiffs  all  those  who  hold  of  us  in  chief;  for  a 
certain  day,  that  is  to  say,  at  a  term  of  forty  days  at  least ; 
and  to  a  certain  place  ;  and  in  all  the  letters  of  such  summons 
we  will  express  the  cause  of  the  summons.'  Leaving  out  of 
sight,  for  a  time,  the  clerical  members  of  this  body,  we  see 
that  the  national  assembly  is  an  assembly  of  the  king's  tenants 
in  chief.  But  we  see  an  important  distinction ;  while  the 
archbishops,  bishops,  abbots,  earls  and  greater  barons  are  to 
be  summoned  severally  by  letters  addressed  to  them  directly, 
the  other  tenants  in  chief  are  to  be  summoned  not  by  name 
but  by  general  writs  addressed  to  the  sheriffs.  Now  this 
distinction  has  been  the  subject  of  much  disputation.  It  is 
mentioned  in  the  Charter  as  an  already  well  understood 
distinction,  as  one  already  recognized  in  practice;  the  difficulty 
has  been  to  find  its  foundation — what  makes  a  man  a  baro 
major  ?  The  principle  cannot  be  found  in  feudal  theory, 


I  Greater  and  Smaller  Barons  65 

feudally  all  these  persons  stand  on  the  same  level,  they  are 
tenants  in  chief  whether  they  hold  whole  counties  or  single 
knight's  fees.  One  small  class  may  be  definitely  marked  off, 
namely  the  earls.  The  earl  of  the  Norman  reigns  is  definitely 
the  successor  of  the  earl  of  the  days  before  the  Conquest,  who 
again  is  the  successor  of  the  older  ealdorman.  To  a  certain 
extent  under  William  and  his  sons  the  earldom  was  still  an 
office  implying  a  considerable  though  somewhat  vague  power 
in  the  county  which  gave  to  the  earl  his  title :  but  it  had  become 
less  and  less  of  an  office,  more  and  more  of  a  mere  dignity. 
The  royal  policy  had  been  to  prevent  great  jurisdiction  falling 
into  the  hands  of  powerful  nobles,  and  to  rule  the  shires  by 
sheriffs  strictly  accountable  to  the  king  and  removable  at  a 
moment's  notice.  The  earls,  however,  are  a  quite  distinct  class 
and  a  small  class,  for  the  title  had  not  been  lavishly  given. 
As  to  the  title  of  baron  (bard)  the  clause  before  us  is  quite 
evidence  enough,  were  there  no  other,  that  it  was  not 
confined  to  those  who  were  entitled  to  the  special  summons, 
for  this  distinguishes  not  the  barones  but  the  barones  majores. 
It  would  seem  that  at  this  time  the  title  baron  covered  all  the 
military  tenants  in  chief  of  the  crown.  This  is  in  accordance 
with  the  original  meaning  of  the  word — baro  is  simply  man  ; 
this  meaning  it  long  kept  in  our  law  French  :  husband  and  wife 
arc  baron  and  feme;  but  man  is  the  term  opposed  to  lord] 
the  man  does  homage  to  his  lord,  hominiuin  or  homagium^  from 
homo  a  man ;  and  it  seems  somewhat  of  an  accident  that  while 
we  speak  of  the  homage  of  a  manorial  court,  meaning  thereby 
the  body  of  tenants  owing  suit  and  service,  we  speak  of  the 
baronage  of  the  king's  court;  the  king's  tenants  in  chief  are 
his  Jwmines  and  his  barones  also.  A  line  has  then  been  drawn 
which  divides  these  persons  into  two  classes : — this  probably 
is  a  result  gradually  attained  by  the  practice  of  a  century. 
The  greater  men  had  paid  their  feudal  dues  directly  to  the 
king's  exchequer,  the  smaller  had  paid  through  the  sheriff; 
the  greater  when  serving  in  the  army  brought  up  their  retainers 
under  their  own  banners,  the  smaller  served  under  the  sheriff; 
the  greater  were  summoned  to  the  king's  court  directly,  the 
smaller  through  the  sheriff.  But  when  we  ask  what  greater 
and  smaller  mean,  we  can  give  no  precise  answef.  In  particular 
u.  5 


66  Constitutional  History  PERIOD 

we  cannot  say  that  a  certain  definite  extent  or  value  of  land 
was  either  necessary  or  sufficient  to  make  a  man  entitled  to 
the  special  summons.  Then  again  in  this  same  Magna  Carta 
we  find  a  distinction  as  to  reliefs,  the  heir  of  the  baron  is  to 
pay  for  an  entire  barony  (baronia)  a  hundred  pounds,  or 
according  to  some  copies  a  hundred  marks,  the  heir  of  the 
knight  holding  in  chief  of  the  king  is  to  pay  a  hundred 
shillings  for  the  knight's  fee.  It  seems  that  the  baro  who  has 
a  baronia  in  the  one  clause  is  the  baro  major  who  is  to  have  a 
special  summons  in  the  other  clause.  The  process  of  narrowing 
the  import  of  the  word  baron  to  those  who  are  entitled  to 
the  special  summons  goes  on  during  the  following  century. 
Tenancy  in  chief  is  not  sufficient  now  to  give  a  man  this  title 
of  baro  ;  he  may  hold  in  chief  and  yet  be  merely  miles.  The 
estate  of  the  baron  is  a  barony,  but  though  there  may  be  a 
theory  floating  about  that  the  barony  is  or  should  be  related 
to  the  knight's  fee  as  the  mark  is  related  to  the  shilling,  that 
is  to  say,  that  the  barony  should  consist  of  thirteen  knight's 
fees  and  a  third — still  it  seems  certain  that  an  estate  of  this 
value  was  neither  necessary,  nor  in  itself  sufficient,  to  entitle 
the  holder  to  the  special  summons.  Certain  particular  estates 
had  come  to  be  regarded  as  baronies  and  to  pay  the  heavier 
relief,  we  can  say  very  little  more. 

During  the  period  which  ends  with  the  charter  we  have 
little  evidence  as  to  the  constitution  of  the  national  assembly. 
The  earliest  writ  of  summons  that  we  have  is  one  addressed 
to  the  Bishop  of  Salisbury  in  1205  ;  of  general  summonses  sent 
out  through  the  sheriffs  we  have  none  preserved ;  but  very 
possibly  throughout  the  reign  of  Henry  the  Second  the  assembly 
had  been  constituted  after  the  fashion  prescribed  by  the 
charter.  During  that  reign  councils  had  been  frequent; 
Henry  was  a  strong  king,  not  afraid  of  meeting  his  vassals, 
with  a  policy  of  his  own  and  a  policy  which  required  their 
support.  Some  great  laws,  I  may  remind  you,  were  made  in 
his  reign,  though  the  text  of  them  has  too  often  perished — the 
Constitutions  of  Clarendon,  the  Grand  Assize,  the  Assizes  of 
Clarendon  and  Northampton.  He  professedly  legislates  by 
the  counsel  and  consent  of  the  archbishops,  bishops,  barons, 
earls  and  nobles  of  England — by  the  petition  and  advice  of 


I  Taxation  and  Consent  67 

his  bishops  and  all  his  barons  and  so  forth.  The  counsel  and 
consent  may  still  have  been  little  more  than  a  ceremony — the 
enacting  power  was  with  the  king — and  he  could  put  in  respite 
or  dispense  with  the  ordinances  that  were  issued.  The  tyranny 
of  John  after  the  discipline  of  Henry  was  what  was  needed  to 
turn  this  right  of  joining  in  legislation  into  a  reality.  In  form 
the  Charter  is  a  Charter,  a  free  grant  by  the  king,  in  reality  a 
code  of  reforming  laws  passed  by  the  whole  body  of  bishops 
and  barons  and  thrust  upon  a  reluctant  king. 

It  is  not  very  clear  that  in  theory  the  consent  of  the 
national  council  had  been  necessary  for  taxation  or  that  it 
had  been  in  fact  granted.  Henry  the  Second  takes  a  scutage 
or  an  aid  or  a  carucage ;  the  chroniclers  do  not  say  that  the 
consent  of  his  council  or  his  court  has  been  given  or  asked. 
The  feudal  theory  that  the  man  makes  a  free-will  offering  to 
relieve  the  wants  of  his  lord  seems  to  have  subsisted  ;  the 
consent  which  theory  requires  is  rather  a  consent  of  the 
individual  taxpayer  than  that  of  the  national  assembly.  The 
notion  that  the  majority  of  an  assembly  could  bind  a  recal- 
citrant minority  or  could  bind  those  who  were  not  present 
had  hardly  been  formed  and  would  have  been  as  unpopular  as 
the  notion  that  the  king  himself  can  extort  just  what  he  wants. 
We  begin  to  hear  of  opposition  to  taxation:  in  1163  Becket 
protests,  in  1198  Bishop  Hugh  of  Lincoln.  But  these  protests 
of  S.  Thomas  and  S.  Hugh  are  rather  the  protests  of  individuals 
who  will  not  pay  a  tax  to  which  they  have  not  consented, 
than  assertions  that  the  power  to  tax  is  vested  in  the  national 
assembly.  The  necessity  however  of  extending  taxation 
from  land  to  movables  occasions  a  new  organization  and 
a  new  order  of  ideas.  The  Saladin  tithe  of  1188  is  perhaps 
the  first  attempt  to  tax  personal  property1.  Henry  obtained 
from  a  great  national  council  a  promise  of  a  tithe  for  the 
crusade ;  the  assessment  in  such  a  case  could  not  be  left  to  a 
transaction  between  the  individual  taxpayer  and  the  royal 
officers,  so  Henry's  favourite  machinery,  a  jury  of  neighbours, 
was  employed;  in  1 198  this  plan  was  applied  to  the  assessment 
of  the  carucage,  the  land  tax  levied  on  the  carucate  or  plough- 

1  Select  Charters^  p.  160. 


68  Constitutional  History  PERIOD 

land  which  had  superseded  the  Danegcld1.  Thus  taxation  and 
representation  are  brought  into  connection — the  individual  is 
assessed  by  his  neighbours,  by  a  jury  representing  his  parish, 
and  so  in  some  sort  representing  him.  The  idea  that  repre- 
sentation should  accompany  taxation  gains  ground  as  personal 
property  is  brought  under  contribution.  In  1207  John 
attempted  to  exact  a  thirteenth  of  movable  property.  The 
bishops  refused  this  on  behalf  of  the  clergy ;  John  had  to  give 
up  this  plan  of  taxing  them.  The  great  crisis  followed  and 
the  charter  was  won.  No  scutage  or  aid,  save  the  three  regular 
aids,  was  to  be  levied  without  the  common  consent  of  the  realm. 
Other  forms  of  taxation,  taxes  for  example  on  movables,  were 
not  mentioned,  nor  could  the  national  assembly,  as  defined  in 
the  fourteenth  article,  be  considered  as  adequately  representing 
all  classes:  it  was  an  assembly  of  prelates  and  tenants  in  chief. 
This  however  was  but  a  stage,  and  the  principle  that  repre- 
sentation should  accompany  taxation  was  already  outgrowing 
the  terms  in  which  for  the  moment  it  was  defined.  Already 
in  1213,  two  years  before  the  charter,  an  assembly  for  the 
discussion  of  grievances  had  been  held  at  S.  Albans,  to  which 
were  summoned  not  only  the  barons  and  bishops  but  also  a 
body  of  representatives — four  men  and  the  reeve  from  each 
township  on  the  royal  demesne;  already  a  few  months  later, 
on  7  Nov.  1213,  John  had  summoned  to  a  council  at  Oxford, 
four  lawful  men  of  every  shire,  ad  loquendum  nobiscum  de 
negotiis  regni  nostri.  These  are  the  first  recorded  examples 
of  the  appearance  of  local  representatives  in  the  national 
assembly.  Eighty  years  were  yet  to  pass  however  before 
a  representation  of  the  commons  or  the  communities  of  the 
realm  would  become  for  good  and  all  a  constituent  element 
of  that  great  council  of  the  realm  which  had  meanwhile  gotten 
the  name  of  a  Parliamentum. 

Meanwhile  the  administrative  and  judicial  body,  the  curia 
Regis  in  its  narrower  sense,  has  been  growing  more  definite 
and  has  been  splitting  up  into  various  bodies  with  distinct 
functions,  all  under  the  control  of  the  justiciar  and  the 
king.  There  is  the  Exchequer,  a  fiscal  bureau,  and  court 
of  law  for  all  matters  affecting  the  revenue — the  judges  in  it 

1  Select  Charters i  pp.  256,  7. 


I  The  Judicial  Sy stern  69 

still  keep  the  title  barones  Scaccarii,  although  they  are  by  no 
means  always  chosen  from  the  ranks  of  the  baronage.  There 
is  the  Chancellor  who  keeps  the  king's  great  seal  and  who 
stands  at  the  head  of  a  clerical  establishment,  the  royal 
chancery.  There  is  now  a  small  compact  body  of  judges, 
justices  of  the  king's  court,  professionally  learned  in  the  law. 
The  judicial  work  has  enormously  increased  owing  to  the  law 
reforms  of  Henry  II.  This  judicial  body  again  is  splitting 
into  sections.  One  party  of  justices  attends  the  king  in  his 
progresses,  and  here  we  see  the  beginning  of  the  court  of 
King's  Bench,  another  sits  term  after  term  at  Westminster 
and  is  going  to  be  the  Court  of  Common  Pleas — for  the  Great 
Charter  concedes  that  common  pleas,  i.e.  suits  between  subject 
and  subject,  are  not  to  follow  the  king's  person,  but  are  to  be 
heard  in  some  certain  place.  But  a  reserve  of  justice  remains 
in  the  king  to  be  exercised  by  him  in  the  great  council  of  the 
nation,  or  in  some  smaller  council.  Judicial  visitations  of 
the  counties,  eyres,  itinera^  have  become  very  frequent — the 
royal  courts  are  becoming  the  courts  of  first  resort  for  most 
cases ;  but  the  old  local  courts  are  brought  into  connection 
with  the  king's  courts  by  these  visitations.  When  the  justices 
in  eyre  come  into  the  county,  the  whole  county  must  come 
before  them  ;  every  freeholder  must  be  there  or  send  excuse, 
every  hundred,  every  borough,  must  be  represented  by  its  jury 

of  twelve,  every  township  by  the  reeve  and  four  men1. 

s 

^(iv)     1216-95. 

After  1215  the  next  great  halting-place  in  the  history  of 
the  national  assembly  is  the  year  1295.  In  the  latter  year 
there  is,  we  may  say  definitely,  a  parliament ;  the  great  out- 
lines have  been  drawn  once  for  all.  During  these  eighty 
eventful  years  a  new  principle  has  emerged  and  become 
dominant.  The  assembly  contemplated  by  the  first  edition 
of  the  great  charter  is  a  feudal  assembly.  It  may  be  questioned 
perhaps  in  what  right  the  archbishops,  bishops  and  abbots  find 
a  place  there — whether  as  the  heads  of  the  national  church  or 

1  For  an  elaborate  survey  of  the  judicial  system  at  the  end  of  Henry  II's  reign 
see  Maitland,  Select*  Pleas  of  the  Crown  (Selderi  Soc^,  Intr. 


yo  Constitutional  History  PERIOD 

as  great  vassals  of  the  king ;  they  were  both ;  but  the  assembly 
is  a  court  of  tenants  in  chief.  Now  we  can  hardly  say  that 
the  clauses  of  the  charter  which  require  the  consent  of  an 
assembly  of  this  kind  to  the  imposition  of  a  scutage  or  aid 
ever  became  part  of  the  law  of  the  realm.  They  were  not 
repeated  in  any  later  edition  of  the  charter.  Henry  III 
at  his  coronation  was  a  child  in  the  hands  of  William 
Marshall  the  great  Earl  of  Pembroke,  rector  regis  et  regni,  the 
head  of  the  English  baronage,  and  the  king's  guardians  and 
ministers  may  have  thought  it  undesirable  that  their  hands 
should  be  bound  by  such  clauses  at  a  moment  of  grave  peril 
when  the  foreigner  was  in  the  realm,  and  bonds  may  have 
seemed  needless.  This  is  not  to  be  regretted;  had  these 
clauses  become  a  permanent  part  of  the  law  Parliament  might 
have  formed  itself  on  strictly  feudal  lines  ;  we  might  fyave  had 
the  Scottish  parliament  instead  of  the  English.  As  it  was, 
the  necessity  for  raising  money  forced  the  king  to  negotiate 
with  all  classes  of  his  realm.  Henry  was  a  thriftless,  shiftless 
king,  always  extravagant  and  always  poor.  The  meetings  of 
the  national  assembly  during  his  reign  were  many.  Probably 
they  were  summoned  in  accordance  with  the  principle  laid 
down  in  the  charter  of  1215,  the  major  barons  being  sum- 
moned individually,  the  lesser  tenants  in  chief  by  general  writs 
addressed  to  the  sheriff.  To  such  an  assembly,  held  on  the 
occasion  of  the  king's  marriage  in  1236,  we  owe  the  Statute  of 
Merton.  These  meetings  were  realities  ;  counsel  and  consent 
could  no  longer  be  taken  for  granted ;  under  John  the  baronage 
had  learned  to  act  together  as  a  whole.  Demands  for  money 
are  met  by  demands  for  reform — demands  which  sometimes 
seem  startling  even  to  us.  From  1234  onwards  Henry  was 
trying  to  rule  without  great  ministers,  without  justiciar, 
chancellor,  or  treasurer.  The  scheme  which  from  time  to 
time  pleases  the  baronage  is  that  of  a  small  number  of  ministers 
or  counsellors  appointed  by  and  answerable  to  the  common 
council  of  the  realm.  Henry  was  lavish  with  promises  which 
are  always  broken. 

Meanwhile  the  representative  principle  was  growing.  The 
notion  of  the  representation  of  a  community  by  some  of  its 
members  must  have  been  old.  Already  in  the  Leges  Henrici 


1  Representation  7 1 

Primi  we  find  that  in  the  local  courts  the  townships  are 
represented  by  the  priest,  the  reeve  and  four  of  the  best 
men1.  This  usage  may  already  have  been  very  old.  Certainly 
at  a  little  later  date  we  find  that  the  county  court  when  sum- 
moned in  all  its  fulness  to  meet  the  king's  justices  in  their 
eyres  comprises  not  only  all  the  free  tenants  of  the  shire,  but 
also  a  representation  of  the  boroughs  and  townships,  from 
every  township  four  lawful  men  and  the  reeve,  from  every 
borough  twelve  lawful  burgesses2.  The  whole  system  of  trial 
by  jury  in  its  earliest  form  implies  representation — a  person 
is  tried  by  the  country,  by  the  neighbourhood,  ponit  se  super 
patriam,  super  mcinetum.  The  voice  of  the  jurors  is  the 
verdict  of  the  country,  veredictum  patriae.  When  we  look 
at  the  eyre  rolls  of  this  time  (there  are  plenty  of  rolls  from 
the  first  years  of  Henry  III)  we  are  struck  by  the  deep 
root  which  this  notion  has  taken  : — the  whole  county  is 
present  and  can  speak  its  mind,  every  hundred  is  present, 
every  township — the  hundred  of  Berkeley  says  this,  the 
township  (villata)  of  Stow  says  that;  the  county,  the 
hundreds,  the  townships  can  be  amerced  and  fined  for  neglect 
of  their  police  duties  or  for  saying  what  is  false.  But 
representation  does  not  necessarily  imply  election  by  the 
represented  ;  representatives  may  be  chosen  by  a  public 
officer  or  by  lot.  However  in  1194  we  find  that  the  juries 
for  the  various  hundreds  are  appointed  thus:  four  lav/ful 
knights  are  elected  from  the  county,  who  choose  two  lawful 
knights  from  each  hundred,  who  again  choose  ten  lawful 
knights  from  the  hundred  to  make  with  themselves  the 
twelve  jurors  for  the  hundred.  The  coroners  again  from  the 
first  moment  of  their  institution  in  1194  had  been  elected  by 
the  county.  This  local  organization  had,  we  have  seen,  been 
made  use  of  for  fiscal  purposes ;  assessments  to  taxes  on 
movables  and  even  on  land  had  been  made  by  local  juries. 
At  an  exceptional  crisis  in  1213  four  lawful  men  with  the 
reeve  from  the  vills  of  the  royal  demesne  had  been  called 
on  to  meet  the  bishops  and  barons,  and  in  J^e  same  year  four 
discreet  men  from  each  shire  had  been  f  ?  loned  ad  loquen- 

1  Select  Charters,  p.  105,  vil,  7. 
1  #.  p.  358- 


72  Constitutional  History  PERIOD 

ditm  nohiscum  de  negotiis  regni  nostri1.  Throughout  Henry's 
reign  the  use  of  local  and  representative  machinery  for  the 
assessing  and  collecting  of  taxes  granted  by  the  assembly  of 
barons  and  prelates  becomes  more  constant  and  more  impor- 
tant Distinct  progress  is  made  in  1225,  in  1232,  in  1237. 
The  documents  you  will  find  in  the  Select  Charters9.  In  1254 
a  great  step  was  made.  The  king  had  gone  to  Gascony  and 
was  in  sore  need  of  money ;  the  regents,  his  wife  and  brother, 
summoned  a  great  council  to  Westminster:  to  which  each 
sheriff  was  to  send  four  knights  from  his  county,  €  four  lawful 
and  discreet  knights  from  your  county  whom  the  county  shall 
have  chosen  for  this  purpose  in  the  place  of  all  and  singular 
of  the  said  counties  to  provide  along  with  the  knights  from  the 
other  counties  whom  we  have  caused  to  be  summoned  for 
the  same  day  what  aid  they  will  give  to  us  in  this  our  great 
necessity/  Representatives  of  the  counties,  representatives 
elected  by  the  counties,  then  are  summoned  not  merely  to 
assess,  but  to  grant  an  aid ;  there  is  to  be  no  dealing  with 
each  county  separately;  all  are  to  meet  together  and  to 
provide  together. 

The  great  struggle  which  began  in  1258  and  ended  with 
the  battle  of  Evesham,  4  August  1265,  did  not  carry  the  history 
of  parliament  much  further.  The  Parliaments  between  that 
of  1254  and  that  of  1265 — the  word  parliamentiim  was  just 
coming  into  use,  supplanting  colloquiiim  and  other  terms,  and 
the  assembly  which  forced  the  charter  from  John  had  recently 
been  styled  retrospectively  parliamentum  Runimedae — did  not 
contain,  so  far  as  we  know,  any  representatives  of  shires  or 
boroughs.  The  national  strivings  have  another  end  in  view : 
a  small  council  elected  by  the  barons  to  control  the  king, 
ministers  elected  by  and  answerable  to  the  baronage,  the 
reform  of  a  miscellaneous  catalogue  of  abuses.  Beginning 
with  the  parliament  held  at  Oxford  in  1258,  the  Mad  Parlia- 
ment, we  have  complicated  paper  constitutions  of  an  oligarchic 

1  Select  Charters,****.  276,  287,  and  Constitutional  History,   vol.  I,  §  154. 
Mr  Davis  [Engl.  Hist.  Rev.  April  1905,  pp.  289—90]  argues  that  in  the  earlier 
case  the  jurors  were  summoned  not  to  S.  Albans  but  to  their  respective  shire- 
courts. 

2  Select  Charters^  pp.  355—6,  360—2,  366—8. 


I  Simon  de  Montfort  73 

character,  some  of  which  work  for  a  while,  from  which  the 
king  frees  himself  when  he  can.  An  important  set  of  reforms 
redressing  the  grievances  of  the  smaller  tenants  in  chief  was 
obtained  in  1259,  the  Provisions  of  Oxford ;  but  in  the  end  it 
came  to  fighting.  When  the  parties  were  already  arming  in 
1261,  the  chiefs  of  the  provisional  government  summoned  to 
an  assembly  at  S.  Albans  three  knights  from  each  shire; 
Henry  ordered  the  knights  to  be  sent  not  to  S.  Albans,  but 
to  Windsor.  The  battle  of  Lewes  was  won  on  14  May,  1264. 
Almost  immediately  Simon  of  Montfort,  who  had  the  king  in 
his  hands,  ordered  the  election  of  four  knights  to  meet  the  king 
in  parliament  on  22  June.  At  the  end  of  the  year  he  sum- 
moned the  famous  parliament  of  1265.  As  to  bishops,  abbots 
and  barons  only  such  were  summoned  as  were  friends  of  the 
party  in  power — only  five  earls,  only  eighteen  barons.  But 
each  sheriff  had  a  writ  to  return  two  discreet  knights  for  each 
shire,  and  a  similar  summons  was  sent  to  the  cities  and 
boroughs.  What  was  newest  in  this  parliament  was  the 
presence  of  representatives  of  the  cities  and  boroughs.  Soon 
followed  the  battle  of  Evesham.  There  is  nothing  to  prove 
that  during  the  six  last  years  of  the  reign  the  parliaments 
included  representatives  of  shires  or  boroughs  ;  but  we  can- 
not be  quite  certain  of  this ;  and  proctors  of  the  cathedral 
chapters  were  present  at  the  Parliament  of  Winchester  held 
immediately  after  the  king's  victory.  One  of  these  parlia- 
ments, that  of  1267,  passed  the  great  Statute  of  Marlborough 
or  Marlbridge,  which  conceded  many  of  the  reforms  for 
which  the  nation  had  clamoured.  It  professes  to  have  been 
enacted  convocatis  discretioribus  regni  tarn  majoribus  quam 
minoribus. 

The  same  doubt  hangs  over  many  of  the  early  parliaments 
of  Edward's  reign,  many  of  the  parliaments  which  passed  the 
famous  statutes.  In  1273  a  great  assembly  was  held  to  take 
the  oath  of  fealty  to  the  new  king ;  there  came  the  arch- 
bishops and  bishops,  earls  and  barons,  abbots  and  priors,  and 
from  each  shire  four  knights,  and  from  each  city  four  citizens. 
The  Statute  of  Westminster  the  First  (1275)  declares  the 
assent  of  archbishops,  bishops,  abbots,  priors,  earls,  barons, 
and  the  community  of  the  land.  The  Statute  of  Gloucester 


74  Constitutional  History  PERIOD 

(1278),  the  next  great  Act,  was,  as  it  says,  made  with  the 
assent  of  the  most  discreet  men  both  of  high  and  low  degree. 
In  1282  a  curious  expedient  was  tried  ;  the  king  was  fighting 
in  Wales ;  he  caused  two  provincial  councils  to  be  summoned, 
that  for  the  northern  province,  at  York,  that  for  the  southern, 
at  Northampton ;  clergy  and  laity  were  summoned  to  each, 
four  knights  for  each  shire,  two  representatives  for  each  town. 
This  case  was  exceptional,  and  became  no  precedent  Another 
somewhat  anomalous  assemblage  was  held  at  Shrewsbury  in 
1283,  with  representatives  of  twenty-one  selected  towns  and 
two  knights  of  each  shire.  It  is  not  certain  that  any  repre- 
sentatives were  present  at  the  parliament  of  1285,  which 
enacted  that  great  code  which  we  know  as  the  Statute  of 
Westminster  the  Second;  the  very  important  Statute  of 
Winchester  in  the  same  year  (1285)  *s  on  the  face  of  it 
merely  the  king's  commandment,  and  we  do  not  know  that 
any  representatives  of  the  commons  were  present  at  its  making. 
Again,  in  1290,  the  Statute  of  Westminster  III,  the  celebrated 
Quia  Emptores,  was  enacted  by  the  king  at  the  instance  of 
the  magnates.  Knights  from  the  shires  did  attend  that 
parliament,  but  the  statute  was  passed  a  week  before  the  day 
for  which  they  were  summoned.  Two  knights  from  each  shire 
were  summoned  in  1294. 

The  next  year  gives  us  the  model  for  all  future  parlia- 
ments. The  archbishops  and  bishops  are  directed  to  bring 
the  heads  of  their  chapters,  their  archdeacons,  one  proctor  for 
the  clergy  of  each  cathedral  and  two  for  the  clergy  of  each 
diocese.  Every  sheriff  is  to  cause  two  knights  of  each  shire, 
two  citizens  of  each  city  and  two  burgesses  of  each  borough 
to  be  elected.  Seven  earls  and  forty-one  barons  are  summoned 
by  name.  The  clergy  and  baronage  are  summoned  to  treat, 
ordain  and  execute,  the  representatives  of  the  commons  are 
to  bring  full  powers  from  those  whom  they  represent  to 
execute  (ad  faciendum)  what  should  be  ordained  by  common 
counsel.  A  body  constituted  in  this  manner  is  a  parliament ; 
what  the  king  enacts  with  the  consent  of  such  a  body  is  a 
statute.  Very  soon  indeed  these  two  terms  become  specifically 
appropriated ;  for  a  very  short  while  they  may  be  used  in  a 
laxer  way : — parliament  of  course  merely  means  a  conference, 


I  The  Three  Estates  75 

a  meeting  at  which  there  is  to  be  talk,  debate,  deliberation. 
Now  and  again  the  name  is  given  to  meetings  of  the  king's 
ordinary  council,  or  to  meetings  which  would  afterwards  have 
been  called  magna  concilia  as  distinct  from  parliamenta — meet- 
ings of  the  prelates  and  barons  to  which  representatives  of 
the  commons  were  not  called — or  again  to  some  anomalous 
assemblages  which  were  occasionally  summoned.  But  very 
quickly  indeed  usage  becomes  fixed :  a  parliamentum  is  a 
body  framed  on  the  model  of  1295,  it  is  frequently,  habitually, 
summoned,  and  with  its  consent  the  king  can  make  statuta1. 

T«hus  before  the  end  of  the  thirteenth  ccntuiyjdie^national 
assemblyjsceasing  to  be  a  feudal  court,;  it  is  becoming  an 
assembly  of  the  estates  of  the  realm,  that  te  to  say,  according 
to  the  fHeory  of  the  time,  of  all  sorts  andj:ondMons  of  men. 
Against  the  once  common  mistake  of  calling  the  king  one  of 
the  estates  of  the  realm,  I  need  hardly  guard  you ;  it  has  been 
sufficiently  denounced.  The  three  estates  are  clergy,  barons, 
and  commons,  those  who  pray,  those  who  fight,  those  who 
work ;  this  seems  to  have  been  considered  an  exhaustive 
classification  of  the  divers  conditions  of  men.  A  similar 
idea  seems  to  have  been  very  prevalent  throughout  Western 
Christendom  and  to  have  given  rise  to  assemblies  of  estates  ; 
but  the  institutions  to  which  it  gave  rise  varied  with  the 
histories  and  circumstances  of  the  different  nations.  For 
instance  it  is  particularly  noticeable  about  the  English  parlia- 
ment that  the  burghers  do  not  form  a  separate  estate.  There 
was  perhaps  some  tendency  towards  an  arrangement  which 
would  have  drawn  a  broad  line  of  demarcation  between  them 
and  the  knights  of  the  shire,  some  danger  (for  such  we  may 
consider  it)  that  the  king  would  be  able  to  get  money  by 
negotiating  with  the  merchants  grants  of  customs,  indirect 
taxes  which  would  have  fallen  on  the  consumer.  There  were 
such  negotiations  in  Edward  the  First's  day ;  but  the  danger 
was  counteracted  ;  the  whole  mass  of  representative  members 
sat  together  and  voted  together  and  represented  but  one 
estate,  the  commons  of  the  realm. 

1  The  growth  of  parliament  under  Edward  I  is  traced  by  Stubbs,  Const.  Hist. 
vol.  II,  c.  15. 


76  Constitutional  History  PERIOD 

Of  course  one  such  assembly  as  that  of  1295  might  well 
have  been  a  solitary  event  which  the  historian  would  note  on 
passing  as  an  anomaly.  Taking  our  stand  at  the  death  of 
Edward  in  1307  we  are  not  entitled  to  say  that  the  sovereign 
powers  which  formerly  were  exercised  by  the  king,  or  by  the 
king  and  his  barons,  have  definitely  been  transferred  to  an 
assembly  of  estates1.  It  is  only  in  the  light  of  what  was  at 
that  time  future  history,  that  the  parliaments  of  Edward's  last 
years  have  their  vast  importance.  However,  we  know  as  a 
matter  of  fact  that  they  did  form  precedents ;  that  parliaments 
formed  on  the  model  of  1295  were  constantly  held  during  the 
coming  centuries;  that  at  last  it  was  distinctly  recognized 
that  the  sovereign  power  of  the  realm  was  vested  in  a  king 
and  a  parliament  constituted  after  this  model.  It  is  with  such 
knowledge  in  our  minds  that  we  will  examine  the  nature  of 
this  assembly. 

The  first  of  the  three  estates  is  that  of  the  clergy.  In  the 
first  place  the  bishops  and  a  number  of  abbots  are  summoned 
by  name.  Their  position  is,  we  may  say,  somewhat  ambiguous. 
The  bishops  were  the  heads  of  the  clergy,  the  rulers  of  the 
church ;  but  they  were  also  tenants  in  chief  of  the  crown,  and 
held  baronies.  They  had  therefore  a  double  claim  to  be 
present  There  can  be  little  doubt  that  their  claim  to  be 
there  as  prelates  cf  the  church,  apart  from  all  question  of 
baronial  tenure,  would  have  been  fully  admitted.  In  the  first 
place  there  is  a  difference  between  the  wording  of  the  writs 
addressed  to  the  temporal  lords  and  that  of  the  writs  addressed 
to  the  bishops.  Usually  the  lay  baron  is  charged  to  come 
upon  '  the  faith  and  homage/  or*the  '  homage  and  allegiance 
whereby  you  are  bound  to  us';  in  the  bishops'  writs  homage 
is  not  mentioned,  though  the  bishops  had  to  do  homage  for 
their  temporal  possessions;  it  is  to  their  faith  and  love  to 
which  the  king  appeals.  In  the  second  place  when  a  see  is 

1  This  proposition  is  amplified  in  Maitland's  Memoranda  de  Parliament  (Rolls 
Series),  1893,  a  record  of  the  parliament  of  1305.  'A  session  of  the  King's 
Council  is  the  core  and  essence  of  every  parliamentum^  the  documents  usually 
called  parliamentary  petitions  are  petitions  to  the  king  and  his  council,  the 
auditors  of  the  petitions  are  committees  of  the  council,  the  rolls  of  parliament  are 
the  records  of  business  done  by  the  council,  sometimes  with,  but  much  more  often 
without,  the  concurrence  of  the  estates  oi  the  realm.'  Intr.  p.  Ixxxviii. 


I  The  Clerical  Estate  77 

vacant  the  guardian  of  the  spiritualities  of  the  see  was 
summoned  instead  of  the  bishop ;  that  guardian  was  in  some 
cases  the  archbishop,  in  others  the  cathedral  chapter;  the 
barony  of  the  vacant  bishopric  was  not  in  his  hands.  Howr 
ever,  the  double  right  of  the  bishops  provided  abundant 
material  for  controversy  in  later  times. 

As  to  the  abbots — whatever  their  original  title  may  have 
been,  it  soon  came  to  be  regarded  as  title  by  baronial  tenure. 
This  was  brought  about  by  the  abbots  themselves ;  they  had 
few  interests  in  national  politics,  and  attendance  was  burden- 
some. They  therefore  insisted  that  they  need  not  attend 
unless  they  held  by  military  tenure.  The  number  of  them 
summoned  very  rapidly  decreases :  under  Edward  I  it  is  as 
high  as  72 ;  under  Edward  III  it  has  fallen  to  27,  where  it 
remains  until  the  monasteries  are  dissolved. 

But  the  representation  of  the  clerical  estate  was  not  to  be 
completed  by  the  presence  of  the  prelates.  The  inferior  clergy 
were  to  be  represented.  Gradually  the  principle  of  represen- 
tation by  elected  proctors  (prociiratores)  had  been  making  its 
way  into  the  purely  ecclesiastical  assemblies.  Owing  to  the 
rivalry  between  Canterbury  and  York,  there  never  came  to  be 
any  one  ecclesiastical  assembly  for  the  whole  realm ;  just  for 
an  occasional  moment,  under  the  authority  of  a  papal  legate, 
a  body  representing  the  clergy  of  all  England  might  meet, 
but  no  such  body  became  a  permanent  element  in  the  govern- 
ment of  the  church.  Gradually  two  convocations  were  formed, 
the  one  for  Canterbury,  the  other  for  York.  The  growth  >of 
representation  among  the  clergy  was  parallel  with  the  growth 
of  representation  among  the  laity.  The  inferior  clergy  were 
directed  to  send  proctors  to  represent  them  in  the  councils  of 
the  church.  Towards  the  end  of  the  thirteenth  century  the 
plan  adopted  in  the  province  of  Canterbury  was  that  the 
parochial  clergy  of  each  diocese  should  be  represented  by 
two  proctors,  the  clergy  of  each  cathedral  by  one  ;  these 
elected  proctors,  together  with  the  archbishop,  bishop,  abbots, 
priors,  deans  and  archdeacons,  constituted  the  convocation. 
In  the  northern  province  a  slightly  different  rule  prevailed. 

Now  one  must  carefully  distinguish  these  provincial  con- 
vocations from  the  representation  of  the  clergy  in  parliament, 


j8  Constitutional  History  PERIOD 

The  convocations  are  two  ecclesiastical  assemblies  summoned 
by  the  archbishops.  Edward  attempted  to  bring  the  clergy 
to  parliament.  The  bishops  are  to  bring  with  them  to  the 
national  assembly  the  heads  of  their  chapters,  their  arch- 
deacons, one  proctor  for  the  clergy  of  each  cathedral,  and 
two  proctors  for  the  clergy  of  each  diocese.  The  clause 
directing  the  bishops  to  do  this  is  known,  from  its  first 
words,  as  the  praemunientes  clause.  It  has  been  in  use 
ever  since,  is  in  use  even  at  the  present  day,  though  since 
the  end  of  the  fourteenth  century  it  has  been  steadily  dis- 
obeyed. The  clergy  did  not  like  this  plan  of  being  mixed  up 
with  the  laity.  They  were  the  holders  of  great  wealth ;  they 
had  to  bear  a  large  share  of  taxation — but  they  preferred  to 
deal  with  the  crown  separately,  to  vote  their  taxes  in  their 
own  provincial  and  purely  ecclesiastical  convocations.  Thus 
they  missed  the  chance  of  becoming  a  large  element  in  what 
was  going  to  be  the  sovereign  body  of  the  realm.  Parliament, 
instead  of  being  an  assembly  of  the  three  estates,  became  an 
assembly  of  lords,  spiritual  and  temporal,  and  commons.  But 
this  refusal  of  the  clergy  belongs  to  a  later  time  than  that  of 
Edward  I;  Edward  made  the  attempt  to  get  them  to  meet 
the  laity,  so  that  he  might  deal  with  all  estates  of  men  con- 
centrated in  one  assembly. 

The  history  of  the  baronage,  the  second  estate  of  the  realm, 
is  a  matter  of  difficulty :  controversy  has  raged  around  it,  it 
has  become  the  theme  of  a  large  literature.  The  difficulty  has 
at4east  in  part  been  created  by  the  continued  existence  down 
to  our  own  time  of  this  estate,  and  the  high  value  that  men 
have  come  to  set  on  a  seat  in  the  House  of  Lords.  From 
time  to  time  peerages  are  claimed  by  titles  which  rake  up 
the  whole  mass  of  obscure  constitutional  antiquities,  and  a 
committee  of  privileges  of  the  House  of  Lords  is  called  on 
to  import  into  very  remote  times  some  definite  theory  of  the 
baronage,  some  theory  much  more  definite  than  had  been 
conceived  by  the  men  of  those  times.  No  statute  of  limita- 
tions bars  the  claim  to  a  peerage,  and  occasionally  claims 
based  on  very  ancient  facts  have  to  be  discussed  and  decided. 

A  word  about  the  way  in  which  such  claims  are  settled. 
It  seems  admitted  that  the  House  of  Lords  has  a  right  to 


I  The  Baronage  79 

decide  on  the  validity  of  a  new  creation,  a  right  which,  for 
example,  it  exercised  in  1856  when  it  decided  that  the  patent 
of  life  peerage  granted  to  Baron  Parke,  Lord  Wensleydale, 
did  not  entitle  him  to  sit  in  the  House  of  Lords.  On  the  other 
hand  it  seems  certain  that  the  House  has  no  jurisdiction  on 
claims  to  an  old  peerage.  The  power  of  deciding  such  claims 
the  crown  has  kept  to  itself.  As  a  matter  of  fact,  in  a  case  of 
doubt  it  refers  the  matter  to  the  House  of  Lords,  which  refers 
it  to  a  committee  of  privilege — the  committee  reports  to  the 
House,  the  House  communicates  the  resolution  to  the  crown, 
the  crown  acts  upon  it — the  claimant  is  or  is  not  summoned. 
But  this  is  constitutional  usage,  not  law,  as  has  been  very 
explicitly  admitted  by  the  lords  in  quite  recent  times1.  Now 
that  this  should  be  so  even  in  our  own  day  is,  I  think,  very 
instructive.  There  is  no  law  court  into  which  the  claimant  of 
a  peerage  can  go  to  establish  his  claim.  Now-a-days  this 
means  next  to  nothing ;  if  you  think  that  by  hereditary  right 
you  are  entitled  to  be  summoned  as  a  peer  of  the  land  to  the 
House  of  Lords,  doubtless  you  will  get  your  right  But  it 
points  to  what  has  been  very  important,  the  power  of  the  king 
to  determine  the  estate  of  the  baronage. 

Lawyers  and  antiquaries  have  been  forced  to  seek  for 
a  strict  theory  of  the  baronage,  and  have  never  been  very 
successful  in  finding  one.  Doubtless,  however,  tenure  is  the 
quarter  to  which  we  must  look  :  the  idea  of  nobility  of  blood 
is  not  the  foundation.  That  idea  does  occur  all  Europe  over 
among  the  peoples  of  our  own  race  if  we  go  back  far  enough. 
The  distinction  between  eorl  and  ceorl  is  a  distinction  between 
men  who  by  birth  are  noble,  and  those  who  by  birth  are 
perfectly  free  but  still  not  noble  ;  and  in  the  old  dooms  this 
distinction  finds  sufficient  expression,  it  can  be  measured  in 
numbers,  the  wergild  of  the  noble  is  so  many  times  that  of  the 

1  This  was  very  explicitly  admitted  by  Lord  Campbell  in  the  Wensleydale 
case  (Anson,  The  Law  and  Custom  of  the  Constitution.  Part  i:  Parliament. 
3rd  ed.  p.  208),  and  again  by  Lord  Chelmsford  in  the  Wiltes  case  (1869,  L.  R.  4, 
H.  L.  126).  Lord  Chelmsford  went  so  far  as  to  hold  that  a  committee  of  privi- 
leges, hearing  such  a  claim,  is  quite  unlike  a  judicial  tribunal  in  this  respect,  that 
it  is  not  bound  by  the  resolutions  oi  a  previous  committee  ;  it  may  give  diametric- 
ally opposite  advice  in  one  case  to  that  which  has  been  given  in  another;  it 
pronounces  no  judgment,  it  merely  gives  advice.  F.  W.  M. 


8o  Constitutional  History  PERIOD 

non-noble,  the  oath  of  the  eorl  will  outweigh  the  oaths  of  so 
many  ceorls.  But  for  a  long  time  before  the  Conquest  the 
nobility  of  birth  had  been  supplanted  by  a  nobility  of  tenure 
and  of  office.  The  thane  is  noble  because  of  his  relation  to 
the  king,  a  relation  intimately  connected  with  the  holding  of 
land,  and  a  nobility  of  tenants  in  chief,  crown  vassals,  would  be 
the  natural  outcome.  But  as  already  pointed  out,  the  Norman 
Conquest  put  difficulties  in  the  way  of  the  formation  of  such 
a  nobility.  The  aggregate  body  of  tenants  in  chief  was  a  very 
miscellaneous  mass,  including  very  great  men,  and  men  who 
might  relatively  be  called  very  small,  the  tenant  who  dis- 
charged all  feudal  obligation  by  coming  in  person  to  the  fielcl, 
and  he  who  was  bound  to  bring  twenty  or  fifty  knights.  The 
grades  were  many  and  small;  there  was  no  one  place  at  which 
a  hard  line  could  be  drawn  ;  and  probably  it  suited  the  king 
very  well  that  none  should  be  drawn,  that  he  should  not  be 
hemmed  in  by  a  close  aristocracy ;  against  the  great  feuda- 
tories he  relies  on  the  smaller  tenants  in  chief.  The  practice 
of  the  royal  exchequer  and  of  the  royal  army  does  in  time  draw 
a  line ;  on  the  one  hand  stand  the  barones  majores,  who  deal 
directly  with  the  exchequer,  are  summoned  personally  to  the 
army  or  the  council ;  on  the  other  hand  stand  barones  minores, 
barones  secundae  dignitatis,  who  deal  with  the  sheriff,  and  are 
summoned  through  the  sheriff;  the  lands  which  the  former 
hold  are  recognized  as  forming  baronies  ;  for  the  purpose  of 
feudal  dues  they  are  treated  as  wholes,  they  pay  a  lump  sum 
fq£  the  relief;  those  who  have  not  baronies  pay  on  each 
knight's  fee.  Finally  the  word  baro  becomes  appropriated  to 
tenants  of  the  former  class;  the  latter  are  tenentes  in  capite\ 
but  the  word  baro  is  long  used  somewhat  vaguely ;  the  barones 
of  one  clause  of  the  great  charter  seem  to  be  the  barones 
majores  of  another. 

It  has  been  contended  by  some  that  tenure  by  barony 
was  a  particular  kind  of  tenure  differing  from  tenure  by  knight 
service.  The  difficulty,  however,  has  been  to  find  in  what 
respect  these  tenures  differed.  To  say  that  the  one  implied 
the  right  to  the  special  summons  while  the  other  did  not 
explains  nothing,  and  brings  us  back  to  the  point  whence  we 
started,  that  tenure  by  barony  is  the  tenure  of  those  who  are 


i  What  is  a  Barony?  81 

specially  summoned.  When  the  law  of  tenures  attains  its 
fully  developed  form  and  a  systematic  expression,  we  do  not 
find  tenure  by  barony  as  one  of  the  kinds  of  tenure ;  Littleton 
(circ.  1480)  does  not  make  it  a  kind  of  tenure;  a  man  may  hold 
a  barony,  certain  parcels  of  land  have  long  ago  been  recog- 
nized as  forming  a  barony,  but  he  does  not  hold  by  barony,  he 
holds  by  knight  service  or  by  grand  serjeanty.  In  all  private 
law  the  distinction  has  no  place,  it  is  utterly  unlike  the  dis- 
tinction between  tenure  by  knight  service  and  tenure  by 
socage.  This  is  a  question  which  has  been  contested  by 
Selden,  Madox  and  other  very  learned  persons.  I  will  state 
the  cautious  conclusion  of  Dr  Stubbs  :  '  Whether  the  baronial 
honour  or  qualification  was  created  by  the  terms  of  the  original 
grant  of  the  fief,  or  by  subsequent  recognition,  it  is  perhaps 
impossible  to  determine.  As  we  do  not  possess  anything  like 
an  early  enfeoffment  of  a  barony,  it  is  safer  to  confine  ourselves 
to  the  assertion  that  in  whatever  form  the  lands  were  acquired 
or  bestowed,  the  special  summons  recognized  the  baronial 
character  of  the  tenure,  or  in  other  words,  that  estate  was 
a  barony  which  entitled  its  owner  to  such  special  summons1/ 
Thus  we  seem  to  be  involved  in  a  circle — Who  is  entitled 
to  the  special  summons  ?  He  who  holds  a  barony.  -But 
what  estate  is  a  barony  ?  One  which  entitles  its  owner  to  a 
special  summons. 

The  next  point  is  this: — In  the  course  of  the  thirteenth 
century  knights  representing  the  shires  are  summoned  to 
parliament  As  this  practice  is  introduced,  so  the  practice 
directed  by  John's  charter  of  summoning  the  minor  tenants  in 
chief  by  means  of  general  writs  addressed  to  the  sheriffs — a 
practice  which  may  have  been  more  or  less  carefully  observed 
during  the  reign  of  Henry  III — was  abandoned.  The  minor 
tenants  in  chief  would  be  represented  in  parliament  by  the 
elected  knights  of  the  shire.  Probably  they  were  well  content 
with  this  ;  to  attend  at  their  own  cost  assemblies  in  which  they 
had  little  or  no  weight  was  a  burden.  They  fell  definitely  into 
the  mass  of  the  commons :  there  was  no  longer  any  political 
distinction  between  the  tenants  in  chief  who  do  not  get  the 

*  Constitutional  History r,  vol.  II,  §  189. 
M.  6 


82  Constitutional  History          PERIOD 

special  summons  (and  who  have  now  altogether  lost  the  name 
of  barons)  and  the  tenants  of  mesne  lords. 

The  baronage  then  is  the  body  of  men  who  are  summoned 
specially  to  parliament — they  are  summoned  because  they 
hold  baronies,  estates  which  have  been  recognized  as  baronies 
by  the  special  summons,  and  by  the  baronial  relief.  Several 
questions  arise  at  this  point,  which  are  difficult  of  solution. 
First,  was  the  king  restricted  to  the  summoning  of  those  who 
really  held  what  had  already  been  regarded  as  baronies?  The 
answer  seems  to  be  that  such  must  long  have  been  the  theory, 
but  a  vague  theory  by  which  the  king  was  not  very  strictly 
bound.  In  the  fourteenth  century,  as  already  remarked,  a 
large  number  of  abbots  were  relieved  from  the  duty  of  attend- 
ance on  the  ground  that  they  did  not  hold  baronies.  It  is  not 
known,  however,  that  any  temporal  lord  was  ever  relieved  for 
a  similar  reason.  On  the  other  hand  it  is  not  known  that  the 
peers  ever  objected  to  the  introduction  into  their  midst  of  one 
who  had  no  territorial  barony — nor  for  a  long  time  do  we  hear 
of  anyone  protesting  that  he  has  a  right  to  be  summoned 
merely  because  he  holds  a  territorial  barony.  Probably  the 
theory  prevailed  and  was  more  or  less  regularly  observed  (how 
regularly  is  a  difficult  question,  involving  a  terrible  investiga- 
tion of  pedigrees)  until  in  the  reign  of  Henry  VI  the  practice 
crept  in  of  creating  barons  by  letters  patent.  Not  very  long 
after  this  it  becomes  the  definitely  established  doctrine  that 
a  writ  of  summons  followed  by  an  actual  sitting  in  the  House 
awakes  a  peer,  barony  or  no  barony.  This,  however,  left  open 
the  question  whether  the  possession  of  a  barony  did  not  give 
the  right  to  be  summoned,  and  that  question  was  hardly 
settled  until  our  own  day.  During  the  Middle  Ages  lands 
could  not  be  devised  by  will,  the  king's  tenants  in  capite  could 
not  alienate  without  royal  license,  and  no  great  absurdity  could 
have  resulted  from  the  doctrine  that  the  right  to  a  summons 
could  be  conveyed  along  with  the  land.  Certainly  it  seems  to 
have  been  thought  in  the  fifteenth  century  that  the  dignity 
might  be  made  the  subject  of  a  family  settlement,  that  the 
dignity  along  with  the  land  might  be  entailed.  But  in  1669 
the  contrary  was  definitely  laid  down  by  the  king  in  council 
on  a  claim  to  the  barony  of  Fitzwalter.  Barony  by  tenure 


I  Barony  by  Writ  83 

was  declared  to  have  been  discontinued  for  many  ages,  and 
not  in  being,  and  so  not  fit  to  be  '  received  or  to  admit  any 
right  of  succession  thereto/  The  question  was  reopened  in 
1861  by  the  Berkeley  Peerage  case,  and  what  was  by  this  time 
generally  understood  to  be  law  was  adopted  and  applied.  No 
one  now  can  claim  a  seat  in  the  House  of  Lords  on  the  ground 
that  he  holds  a  land  barony.  With  our  modern  freedom  of 
alienation  some  very  quaint  results  might  have  been  pro- 
duced by  a  contrary  decision.  He  must  claim  under  writ  of 
summons  or  letters  patent. 

As  regards  barony  by  writ  of  summons  there  are  still  some 
questions  which  remain  very  open.  It  may  be  doubted 
whether  Edward  I  in  summoning  a  baron  intended  to  bind 
himself  and  his  successors  to  summon  that  man  and  his  heirs 
to  the  end  of  time.  But  at  least  very  soon  it  became  the  rule  to 
summon  those  and  the  heirs  of  those  who  had  already  been 
summoned.  Whether  a  writ  of  summons  conveyed  a  here- 
ditary right  was  a  question  very  warmly  discussed  in  the 
seventeenth  century  between  Coke  and  Prynne.  Prynne  pro- 
duced a  long  list  of  cases  in  which  apparently  a  person  who 
was  summoned  once,  or  more  than  once,  was  not  again  sum- 
moned, and  in  which  the  heirs  of  a  person  who  was  summoned 
were  not  summoned.  Dr  Stubbs  says  that  on  careful  exami- 
nation Prynne's  list  shrinks  into  very  small  proportions;  most 
of  them  can  be  accounted  for  by  the  circumstances  of  the 
particular  cases,  such  as  minorities1.  At  any  rate  it  became 
the  orthodox  doctrine  that  the  crown  may  not  withhold  th£ 
writ  from  the  heirs  of  a  person  who  has  been  once  summoned, 
and  who  has  taken  his  seat.  This  was  definitely  decided 
in  1673  in  the  case  of  the  Clifton  barony2.  It  seems  to  have 
been  considered  law  already  in  Coke's  day3.  In  1677  the 
Freshville  case  decided  the  point  that  it  is  not  enough  to  show 
that  one's  ancestor  has  been  summoned,  one  must  show  also 
that  he  took  his  seat.  Until  he  takes  his  seat  he  is  no  peer. 
In  this  respect  barony  by  writ  differs  from  barony  by  patent. 


1  Constitutional  History,  ill,  §  751  note. 

2  An  son,  Parliament,  p.  196. 

J  Abergavenny's  Case,  i«  Rep.  f.  70. 

6—2 


84  Constitutional  History  PERIOD 

The  patent  itself  makes  a  man  a  peer1.  On  the  face  of  a 
writ,  you  will  understand,  there  is  nothing  about  any  peerage, 
any  future  summonses,  any  summoning  of  heirs — heirs  are  not 
mentioned — simply  A.  B.  is  summoned  to  come  to  the  next 
parliament.  A  distinct  theory  of  hereditary  right  has  gradually 
been  developed,  superseding  an  indistinct  theory  of  right  by 
tenure. 

But  besides  the  prelates  and  the  barons  there  are  other 
persons  who  are  summoned  by  name,  members  of  the  king's 
council,  in  particular  the  judges,  and  these  distinctly  do  not  hold 
baronies  and  are  not  barons.  In  the  parliaments  of  Edward's 
reign  the  royal  council  meets  the  estates  of  the  realm.  Edward 
probably  had  no  idea  of  restraining  himself  from  seeking  the 
advice  of  any  whose  advice  might  be  worth  having.  It  is  only 
very  gradually  and  as  a  notion  of  a  hereditary  right  of  peerage 
grows,  that  these  councillors  are  recognized  as  having  no  real 
place  in  the  deliberations  of  parliament.  They  continue  to  be 
summoned,  even  at  the  present  day  the  judges  and  the  law 
officers  of  the  crown  are  summoned  by  name  to  attend  the 
parliament: — but  before  the  end  of  the  Middle  Ages  it  became 
established  doctrine  that  they  had  no  votes,  that  they  were 
not  even  to  speak  unless  asked  for  their  opinion.  Thence- 
forward their  attendance  became  little  more  than  a  form — but, 
as  just  said,  a  trace  of  it  is  retained  at  the  present  day : — the 
judges  are  summoned  to  parliament,  there  are  places  for  them 
in  the  House  of  Lords,  and  that  House  has  a  right  to  compel 
their  attendance  and  to  take  their  opinion  on  matters  of  law, 
a  right  which  it  occasionally  exercises  even  now  though  only 
when  it  is  sitting  as  a  court  of  law. 

1  The  question  seems  still  open  whether  to  prove  the  summons  and  sitting  of 
one's  ancestor  at  any  time,  however  remote,  is  sufficient.  In  one  recent  case  (the 
cle  L/Isle  Peerage)  Lord  Redesdale  seems  of  opinion  that  the  summons  and  sitting 
must  have  taken  place  on  this  side  the  year  1382.  This  year  seems  to  be  chosen 
because  of  a  statute,  5  Ric.  2,  stat.  a,  cap.  4,  which  says  that  'all  and  singular 
persons  and  commonalties  which  from  henceforth  shall  have  the  summons  of  the 
parliament,  shall  come  from  henceforth  to  the  parliaments  in  the  manner  as  they 
are  bound  to  do,  and  have  been  accustomed  within  the  realm  of  England  of  old 
times.1  I  much  doubt  whether  that  statute  was  directed  to  making  the  peerage  more 
hereditary  than  it  was:  it  seems  to  have  had  quite  another  object.  Dr  Stubbs 
would  go  back  as  far  as  1295,  or  even  further,  should  earlier  wriis  be  discovered. 
It  is  a  small  point,  but  rather  instructive.  F.  W.  M. 


]  The  Third  Estate  85 

It  remains  to  speak  of  the  commons  of  the  realm — the 
third  estate.  And  first  of  the  word  '  commons.'  It  seems  to  me 
that  two  ideas  have  been  blended.  The  persons  who  enjoy 
no  special  privilege,  who  have  no  peculiar  status  as  barons  or 
clerks,  are  common  men.  But  I  do  not  believe  that  this  was 
the  notion  present  to  th<e  minds  of  those  who  first  used  the 
term  'the  commons'  in  contrast  to  'the  barons'  and  'the  clergy/ 
I  do  not  think  that  the  word  'a  commoner'  as  opposed  to  'a 
peer'  is  old.  'The  commons,'  says  Stubbs,  'are  the  communi- 
ties or  universitates,  the  organized  bodies  of  freemen  of  the 
shires  and  towns,  and  the  estate  of  the  commons  is  the  com- 
munitas  communitatum,  the  general  body  into  which  for  the 
purposes  of  parliament  these  communities  are  combined1.' 
I  may  remind  you  of  the  French  commune,  and  that  the 
language  of  our  law  just  at  the  time  when  parliament  was 
taking  shape  was  French.  Any  way  the  representatives  who 
appeared  in  parliament  were  not  representatives  of  inorganic 
collections  of  individuals,  they  represented  shires  and  boroughs. 
It  is  a  little  too  definite  to  say  that  they  represented  corpora- 
tions aggregate — the  idea  of  a  corporation  aggregate  had  not 
yet  been  formed  by  our  law,  and  the  English  county  has  never 
become  a  corporation.  Still  this  word  is  only  a  little  too 
distinct.  The  county  was  already  a  highly  organized  entity. 
County  and  county  court  were  one.  The  language  of  the  time 
did  not  distinguish  between  the  two — the  county  court  is  the 
comitatus — there  is  no  such  phrase  in  our  books  as  curia 
comitatus,  curia  de  comitatu.  On  the  judicial  rolls  of  tke 
time  complaints  are  not  uncommon  of  what  the  county  has 
done;  the  county  has  delivered  a  false  judgment ;  the  county 
by  four  representative  knights  comes  into  the  king's  court  and 
denies  that  it  has  given  a  false  judgment;  the  county  even 
wages  battle  by  its  champion  ;  if  the  county  does  not  appear 
then  the  county  is  amerced.  It  is  well  to  remember  that  all 
this  had  been  so  for  a  long  time  before  the  knights  of  the  shire 
were  summoned  to  parliament.  In  summoning  the  county 
to  send  representatives  Henry,  De  Montfort  and  Edward 
were  only  putting  old  machinery  to  a  new  use.  This  helps  us 

1  Constitutional  History >  vol.  II,  §  185, 


86  Constitutional  History  PERIOD 

to  face  a  question  which  has  often  been  discussed — namely, 
who  elected  the  knights  of  the  shire  who  came  to  the  early 
parliaments.  One  answer  has  been,  the  king's  tenants  in  chief 
— these  minor  tenants  in  chief  who  were  not  summoned  by 
name.  There  is  something  to  be  said  for  it.  The  court  ot 
a  feudal  king  should  consist  of  tenants  in  chief — should  have 
no  sub-vassals  in  it.  The  assembly  recognized  or  designed  in 
John's  charter  was  an  assembly  of  this  sort.  It  became 
impossible  or  useless  to  call  up  all  the  tenants  in  chief,  so 
instead  the  lesser  of  them,  those  who  had  no  special  summons, 
were  allowed  or  compelled  to  send  representatives.  The  con- 
stituency then  of  the  knight  of  the  shire  was  an  assembly,  not 
of  all  freeholders,  but  of  tenants  in  chief:  only  gradually  as 
tenure  becomes  of  less  importance,  and  as  the  working  of  the 
Quia  Emptores  largely  increases  the  number  of  tenants  in 
chief,  are  the  tenants  of  mesne  lords  admitted.  But  this 
doctrine  has  been  very  generally  rejected  by  modern  historians, 
by  Hallam  and  by  Stubbs.  From  the  first  the  language  used 
of  the  knights  is  that  they  are  to  be  elected  in  full  county 
court,  by  the  assent  of  the  whole  county,  in  pleno  comitatu> 
per  assensum  totius  comitatus,  and  so  forth.  Such  language 
had  already  a  definite  meaning,  it  had  been  constantly  used 
for  other  purposes;  it  referred  to  the  county  court;  the  county 
court  was  not  an  assembly  constructed  on  feudal  lines ;  it 
comprised  the  whole  body  of  freehold  tenants  holding  whether 
by  mesne  or  by  immediate  tenure  of  the  king.  Those  who 
have  maintained  the  opposite  opinion  have  been  forced  to 
imagine  another  county  court,  one  attended  only  by  the 
tenants  in  capite\  to  the  existence  of  any  such  assembly,  no 
record  bears  witness  ;  such  an  assembly  could  not  have  been 
indicated  by  the  well-known  phrases  plenus  comitatzis^  totus 
comitatus.  If  it  be  urged  that  a  representation  of  sub-vassals 
is  opposed  to  the  feudal  spirit,  the  answer  is  that  Edward's 
legislation  is  pervaded  by  a  spirit  which  is  anti-feudal,  it 
strives  to  lessen  the  public,  the  political  importance  of  tenure, 
to  bring  all  classes  into  direct  connection  with  king  and 
parliament.  This  is,  I  believe,  the  general  opinion  at  the 
present  day — but  it  has  some  difficulties  to  overcome,  for  it 
seems  clear  from  a  series  of  petitions  in  the  fourteenth  century 


i  The  County  Franchise  87 

that  the  question  as  to  who  were  to  pay  the  wages  of  the 
knights  of  the  shire  was  a  somewhat  open  one.  The  tenants 
of  mesne  lords  contended  that  they  were  not  bound  to  con- 
tribute, but  they  do  not,  I  believe,  urge  as  a  reason  for  this 
contention  that  they  are  not  represented.  It  seems  very 
possible  that  practice  differed  somewhat  widely  from  legal 
theory,  that  the  smaller  tenants,  socagers  and  so  forth,  did  not 
often  attend  the  county  court,  that  the  office  of  representative 
was  by  no  means  coveted,  and  that  the  election  was  de  facto 
made  by  the  great  men.  But  it  seems  almost  impossible  to 
believe  in  the  face  of  existing  documents  that  the  electoral  body 
was  not  from  the  first  the  whole  body  of  freeholders,  the  totus 
comitatzis.  The  Act  of  1430  (8  Hen.  VI,  c.  7),  which  regulated 
the  county  franchise  for  four  centuries,  was  (as  appears  by  the 
preamble)  passed  to  prevent  riotous  and  disorderly  elections — 
it  ordains  that  the  electors  are  to  be  people  dwelling  in  the 
county,  whereof  every  one  of  them  shall  have  free  land  or  tene- 
ment to  the  value  of  40  shillings  by  the  year  at  the  least  above 
all  charges.  The  elector  must  be  a  freeholder,  a  forty  shilling 
freeholder — he  must  have  free  land  or  tenement,  but  no  dis- 
tinction is  noticed  between  tenure  of  the  king  and  tenure  of 
a  mesne  lord,  nor  between  military  tenure  and  tenure  by 
socage.  Certainly  this  act  and  some  others  of  the  two  previous 
reigns  do  not  favour  the  belief  that  such  distinctions  had  ever 
been  of  importance. 

I  have  stated  these  two  opinions,  viz.,  that  the  persons  who 
attended  the  county  court  for  the  election  of  representative 
knights  were  (a)  the  tenants  in  chief  of  the  crown,  (b)  all  the 
freeholders — and  I  have  said  that  the  latter  is  the  opinion  which 
now  prevails.  For  my  own  part,  however,  I  doubt  whether 
either  of  them  gives  us  the  real  truth — reasons  for  this  doubt 
you  can  see,  if  you  wish  it,  in  the  English  Historical  Review  for 
July  1888.  Perhaps  I  ought  just  to  state  what  I  believe  to 
be  the  truth.  It  seems  to  me  that  the  duty  of  attending  the 
county  court,  the  duty  of  going  there  to  sit  as  a  judge,  was 
conceived  as  being  in  general  incumbent  upon  all  freeholders, 
but  that  it  had  become  a  burden  annexed  to  particular  parcels 
of  land,  so  that  when  the  number  of  ireeholders  was  increased 
by  subinfeudation  the  number  of  suits  due  to  the  county  court 


88  Constitutional  History  PERIOD 

was  not  thereby  increased.  This  manor,  or  this  township,  or 
this  tract  of  land  which  belongs  to  A,  owes  a  suit  to  the  county 
court  A  enfeoffs  B,  C,  D  with  parts  of  the  land.  The  whole 
manor,  township,  or  tract  still  owes  one  suit,  must  send  one 
suitor,  but  it  owes  no  more.  Who  shall  do  that  suit  is  a 
matter  that  A,  B,  C,  D  can  settle  among  themselves,  and  they 
do  settle  it  among  themselves  by  the  terms  of  the  feoffment. 
As  regards  the  king  or  the  sheriff  they  are  all  jointly  and 
severally  liable  for  the  coming  of  one  suitor,  as  between  them- 
selves they  can  determine  who  shall  discharge  the  burden. 
So  again  in  a  case  of  inheritance — A  holds  land  which  owes 
a  suit:  he  dies  and  it  descends  to  his  three  daughters  B,  C,  D  : 
one  or  other  of  them  must  do  the  suit,  and  in  general  the 
burden  falls  on  the  eldest  daughter. 

It  was  in  this  manner  that  the  county  court,  which  met 
month  by  month  as  a  court  of  law,  was  constituted.  Those 
who  were  bound  to  come  there  were  not  necessarily  tenants  in 
chief,  nor  again  were  all  the  freeholders  bound  to  come — the 
persons  who  were  bound  to  come  were  those  persons  who  by 
means  of  bargains  between  lords  and  tenants  were  answerable 
for  that  fixed  amount  of  suit  to  which  the  court  was  entitled. 
The  evidence  of  this  consists  in  a  large  number  of  entries  in 
documents  of  the  thirteenth  century,  e.g.  the  Hundred  Rolls, 
in  which  it  is  said  that  A  or  B  does  the  suit  to  the  county 
court  for  a  whole  manor  or  township.  Of  course  it  is  con- 
ceivable that  when  the  county  court  sat  for  the  purpose  of 
electing  knights  of  the  shire,  other  persons  attended  and  were 
entitled  to  attend,  besides  the  regular  suitors  who  came  mcnth 
by  month — perhaps  all  freeholders  might  come: — but  I  do  not 
see  the  proof  of  it — such  phrases  as  plenus  comitatzis^  iotus 
comitatus  are  constantly  used  of  the  county  court  as  con^ti- 
tuted  for  judicial  purposes,  the  court  which  sat  month  by 
month,  and  my  contention  is  that  by  no  means  every  free- 
holder owed  suit  to  that  court. 

A  similar  question  has  been  raised  about  the  boroughs. 
Were  the  boroughs  which  were  directed  to  return  represent- 
atives only  the  demesne  boroughs  of  the  crown  or  all  the 
borough^  in  the  shire?  Both  Hallam  and  Stubbs  have  written 
in  favour  of  the  latter  view*  The  election  of  burgesses  to 


I  Borough  Representation  89 

represent  the  towna  was  not  a  matter  altogether  distinct  from 
the  election  of  knights  of  the  shire.  A  writ  was  sent  to  the 
sheriff  of  each  county  commanding  him  to  procure  the  election 
of  two  knights  from  his  county,  two  citizens  from  every  city, 
two  burgesses  from  every  borough.  The  election  was  probably 
made  in  the  boroughs  and  then  reported  to  the  county  court ; 
but  all  was  under  the  direction  of  the  sheriff  of  the  county 
until  the  fifteenth  century,  when  a  few  towns  succeeded  in 
getting  made  counties  of  themselves  and  having  sheriffs  of 
their  own.  Indeed,  so  late  as  1872,  no  writ  was  addressed  to 
any  officer  of  the  borough ;  the  sheriff  of  the  county,  as  of  old, 
was  told  to  send  two  knights  for  the  shire,  two  citizens  for 
every  city,  two  burgesses  for  every  borough.  See  the  writ 
printed  by  Sir  William  Anson,  where  the  sheriff  of  Middlesex 
is  to  return  not  only  two  knights  of  the  shire,  but  also  two 
citizens  for  the  city  of  Westminster  and  two  burgesses  of 
each  of  the  boroughs  of  the  Tower  Hamlets,  Finsbury,  and 
Marylebone1.  But  during  the  Middle  Ages  the  cities  and 
boroughs  were  not  thus  named.  A  considerable  power  seems 
thus  to  have  been  left  in  the  sheriff's  hand.  What  were 
boroughs  and  what  were  not  was  to  a  certain  extent  ascer- 
tained by  the  ordinary  course  of  justice.  Some  boroughs, 
but  by  no  means  all,  had  charters  ;  but  when  the  justices  in 
eyre  came  to  the  county  court,  every  borough  was  represented 
by  its  twelve  burgesses,  while  the  common  country  village,  vil- 
lata,  township  was  represented  by  the  reeve  and  four  best  men. 
In  telling  the  sheriff,  therefore,  to  return  burgesses  from  every 
borough,  terms  were  used  which  had  an  ascertained  meaning. 
We  do  find  the  idea  of  tenure  cropping  up  at  times,  as  though 
only  the  king's  demesne  boroughs  had  a  right  to  be  repre- 
sented, or  rather  were  bound  to  be  represented.  But  it  is 
difficult  to  make  the  facts  correspond  with  any  theory,  and 
certain  that  the  boroughs  on  one  pretext  and  another  evaded 
the  duty  of  sending  representatives  and  paying  their  wages 
whenever  they  could.  There  is  one  case  in  which  a  borough 
(Torrington)  actually  obtained  a  charter  absolving  it  from 
the  obligation. 

1  Anson,  Parliament  %  pp.  57 — 3. 


90  Constitutional  History  PERIOD 

By  whom  were  the  representative  burgesses  elected  ?  As 
regards  Edward's  day,  and  indeed  much  later  times,  our 
materials  for  answering  this  question  are  very  scanty.  The 
one  thing  that  we  can  say  with  some  certainty  is  that  the 
qualification  varied  from  borough  to  borough.  When  at  last 
we  get  accurate  information,  we  find  that  it  varies  very  greatly. 
In  this  borough  the  franchise  is  extremely  democratic,  every 
person  who  has  a  hearth  of  his  own  may  vote ;  in  another, 
every  one  who  contributes  to  the  local  rates,  who  pays  scot 
and  bears  lot ;  in  another,  every  one  who  has  a  free  tenement. 
Elsewhere  the  franchise  is  confined  to  the  members  of  a  small 
civic  oligarchy.  We  can  say  with  some  certainty  also  that 
the  more  democratic  the  qualification,  the  older  it  is.  In 
Edward's  day  contribution  to  the  local  burdens  may  have 
often  qualified  a  man  to  vote ;  in  other  cases  tenure  was  im- 
portant, he  had  to  be  a  tenant  of  the  manor  constituted  by 
the  borough ;  in  some  cases,  membership  of  the  merchant 
guild  may  have  been  requisite  ;  but  the  small  close  corpora- 
tions belong  to  a  later  age.  The  important  thing  to  notice 
is  that  this  matter  was  decided  by  no  general  law;  each 
borough  was  suffered  to  work  out  its  own  history  in  its 
own  way,  and  to  buy  what  privileges  it  could  from  the 
crown. 

That  notions  of  tenure  had  a  considerable,  though  a  re- 
stricted, influence  on  the  constitution  of  parliament  is  shown 
by  the  history  of  the  counties  palatine.  The  county  of  Chester 
returned  no  knights  until  1543;  the  county  of  Durham  re- 
turned none  until  1672. 

At  the  time  of  which  we  are  speaking  (1307),  the  parlia- 
ment of  the  three  estates  was  by  no  means  the  only  organ  of 
government;  indeed,  as  we  have  seen,  it  was  only  just  coming 
into  being.  Most  of  the  great  statutes  of  the  reign  were 
made  in  assemblies  of  the  older  type,  assemblies  in  which 
the  commons  and  the  inferior  clergy  were  not  represented. 
Such  assemblies  of  prelates  and  barons  were  held  in  later 
times,  and  got  the  name  of  Magna  Concilia  which  distinguished 
them  from  true  Parliamenta ;  only  by  slow  degrees  was  the 
line  established  between  what  could  be  done  by  a  Magnum 
Concilium  and  what  could  be  done  by  a  Parliamentum. 


1  The  Ordinary  Council  91 

But  besides  these  grand  councils,  the  king  had  a  permanent 
council  in  constant  session.  This  permanent  or  ordinary  council 
had  grown  out  of  the  curia  Regis  of  earlier  times ;  the  word 
curia  comes  to  be  more  and  more  definitely  appropriated  to  a 
judicial  body,  and  the  judicial  body  becomes  distinct  from  the 
administrative  deliberative  body  to  which  the  king  looks  for 
advice  and  aid  in  the  daily  task  of  government.  A  concilium 
as  distinct  from  the  curia  first  becomes  prominent  during  the 
minority  of  Henry  III — it  acts  as  a  council  of  regency.  It  is 
generally  called  simply  Concilium  Regis ,  as  opposed  to  the 
commune  concilium  regni\  its  members  are  magnates  de  con- 
cilio,  conciliatores.  It  seems  to  comprise  the  great  officers  of 
state,  justiciar,  chancellor,  treasurer,  some  or  all  of  the  judges 
of  the  royal  curiay  and  a  number  of  bishops,  barons  and  other 
members  who  in  default  of  other  title  are  simply  councillors. 
The  chroniclers  now  and  again  inform  us  that  one  person  was 
made  a  member  of  the  council  and  another  dismissed  ;  but 
(and  this  is  noticeable)  there  is  from  the  first  something  in- 
formal about  its  constitution ; — it  needs  no  formal  document 
to  make  a  man  a  member  of  the  council ;  the  king  can  take 
advice  in  what  quarter  he  pleases,  and  the  so-called  councillor 
has  no  right  to  be  consulted.  Just  while  parliament  is  growing 
this  council  also  is  growing.  The  task  of  government  becomes 
always  more  elaborate  ;  it  requires  constant  attention ;  it  can- 
not possibly  be  accomplished  by  the  king  without  the  help  or 
interference  of  a  national  assembly  summoned  from  time  to 
time.  During  Henry's  reign  the  scheme  of  reform  constantly 
put  forward  by  the  barons  is  that  they  should  elect  the  council ; 
Henry's  councillors  have  too  often  been  his  hated  foreign 
favourites.  This  scheme  breaks  down.  Under  Edward  the 
council  is  a  definite  body ;  its  members  take  an  oath ;  they 
are  sworn  of  the  council — swearing  to  give  good  advice,  to 
protect  the  king's  interests,  to  do  justice  honestly,  to  take  no 
gifts.  Under  Edward  the  relations  of  this  king's  council  to 
the  great  council  of  the  realm  are  still  indefinite;  all  works 
so  smoothly  that  there  is  no  struggle,  and  consequently  no 
definition.  Both  in  his  parliament  and  in  his  council  the  king 
legislates,  taxes  and  judges — indeed  it  is  often  hard  for  us  to 
say  whether  a  given  piece  of  work  is,  has  or  has  not  been 


92  Constitutional  History  PERIOD 

sanctioned  by  the  common  council  of  thd  realm.  Let  us 
take  these  points  separately — (i)  legislation,  (2)  taxation, 
(3)  judicature. 

(1)  That  the  king  could  not  by  himself  or  by  the  advice 
of  a  few  chosen  advisers  make  general  laws  for  the  whole 
realm  seems  an  admitted  principle.     The  most  despotic  of 
Edward's  predecessors  had  not  claimed  such  a  power — it  is 
with  the  counsel  of  prelates  and  barons  that  they  legislate. 
On  the  other  hand,  that  the  commons  or  inferior  clergy  must 
share  in  legislation  was  not  admitted,  was  not  as  yet  even 
asserted.     As  already  said,  the  great  laws  of  the  reign — laws 
which  made  the  profoundest  changes  in  all  parts  of  the  common 
law,  laws  which  all  subsequent  generations  have  called  statutes, 
statutes  which  are  in  force  at  the  present  moment — were  made 
in  assemblies  in  which  the  commons  were  not  represented. 
But  again  it  seems  to  have  been  allowed   that  there  were 
regulations  which  might  be  made  without  the  sanction  of 
a  national  assembly  of  any  kind.     The  king  in  his  council 
could  make,  if  not  statutes,  at  least  ordinances.     Some  even 
of  what  we  now  call  the  statutes  of  Edward  I  do  not  on  their 
face  claim  any  higher  authority  than  that  of  the  king  and  his 
council.    Here  is  a  fruitful  source  of  difficulty  for  future  times. 
Can  any  line  be  drawn  between  the  province  of  the  statute 
and  the  province  of  the  ordinance  ?    Under  Edward  all  works 
so  smoothly  that  the  question  is  not  raised.     We  can  say  no 
more  than  this — and  it  is  vague  enough — that  important  and 
permanent  regulations  which  are  conceived  as  altering  the 
law  of  the  land  can  only  be  made  by  statute,  with  the  consent 
of  prelates  and  barons.     Minor  regulations,  temporary  regu- 
lations, regulations  which  do  not  affect  the  nation  at  large  can 
be  made  by  ordinance. 

(2)  We  turn  to  taxation,  and  may  begin  with   a   few 
general  reflections  as  to  past  history.     In  the  first  place,  the 
king  had  not  been  nearly  so  dependent  on  taxation  as  a  modern 
government  is.     Indeed  it  is  not  until  the  very  end  of  the 
Anglo-Saxon  time  that  we  hear  of  anything  that  can  be  called 
a  tax,  not  until  it  is  necessary  to  pay  tribute  to  the  Danes. 
Let  us  briefly  reckon  up  the  sources  of  income  which  the 
kings  enjoyed  after  the  Conquest.     In  the  first  place  there 


I  Taxation  93 

were  the  demesne  lands  of  the  crown.  The  remnant  of  the 
old  folk  land  had  become  terra  Regis,  and  this  constituted 
the  ancient  demesne1.  Then  escheats  and  forfeitures  were 
constantly  bringing  to  the  king's  hand  new  demesne  lands. 
Apart  from  his  being  the  ultimate  lord  of  all  land,  the  king 
was  the  immediate  lord  of  many  manors — he  was  by  far  the 
largest  landowner  of  the  kingdom.  Secondly,  there  were  his 
feudal  rights — rights  which  had  steadily  grown  in  some  direc- 
tions, if  they  had  been  diminished  in  others.  The  charter  of 
1215,  by  clauses  which  were  never  again  repeated,  forbad  him 
to  impose  any  scutage,  or  any  aid  save  the  three  regular 
feudal  aids,  without  the  common  counsel  of  the  realm.  The 
charter  defined  the  amount  to  be  paid  for  reliefs,  but  besides 
scutages,  aids  and  reliefs,  he  was  entitled  to  wardships  and 
marriages — his  rights  in  this  direction  had  steadily  grown, 
and  these  were  profitable  commodities.  Thirdly,  the  profits  of 
justice  in  the  king's  courts  must  have  been  very  considerable. 
Under  John  the  sale  of  justice  had  become  scandalous.  By 
the  charter,  he  promised  to  sell  justice  to  none — but  without 
exactly  selling  justice,  there  was  much  profit  to  be  made  by 
judicial  agencies :  fees  could  be  demanded  from  litigants,  and 
in  the  course  of  proceedings,  civil  as  well  as  criminal,  numerous 
fines  and  amercements  were  inflicted.  Fourthly,  the  king  had 
many  important  rights  to  sell,  in  particular  the  right  of  juris- 
diction, and  though  the  more  far-sighted  of  the  kings  dreaded 
and  checked  the  growth  of  proprietary  jurisdiction,  there  was 
always  a  temptation  to  barter  the  future  for  the  present.  The 
right  to  have  a  market  was  freely  sold,  and  many  similar 
rights.  Pardons  again  were  sold.  The  towns  had  to  buy 
their  privileges  bit  by  bit.  What  is  more,  the  grantee  of  any 
privilege  had  in  practice  to  get  the  grant  renewed  by  every 
successive  king.  That  the  king  was  bound  by  his  ancestors' 
grants  might  be  the  law,  but  it  was  law  that  no  prudent  person 
would  rely  on.  Offices  too,  even  the  highest  offices  of  the 
realm,  were  at  times  freely  bought  and  sold — this  does  not 
seem  to  have  been  thought  disgraceful.  Fifthly,  a  good  deal 
could  be  made  out  of  the  church — when  a  bishop  died  the 
king  took  the  temporalities,  the  lands,  of  the  see  into  his  own 

1  Seep.  57. 


94  Constitutional  History  PERIOD 

hand,  and  was  in  no  hurry  to  allow  the  see  to  be  filled ;  this 
however  was  an  abuse.  Sixthly,  the  king  had  a  right  to 
tallage  the  tenants  on  his  demesne  lands,  and  on  his  demesne 
lands  were  found  many  of  the  most  considerable  towns.  This 
seems  the  right  rather  of  the  landlord  than  of  the  king;  other 
lords  with  the  king's  leave  exercised  a  similar  right  over  their 
tenants  in  villeinage.  The  tenants  on  the  demesne  lands  had 
for  the  most  part  held  in  villeinage;  the  burghers  had  very 
generally  bought  themselves  free  of  villein  services  in  con- 
sideration of  an  annual  rent,  but  the  king  had  retained  the 
right  to  impose  a  tallage  from  time  to  time — to  impose  a 
certain  sum  on  the  borough  or  the  manor  as  a  whole — or 
rather  an  uncertain  sum,  for  we  hear  of  no  limit  to  the  amount. 
Lastly,  somehow  or  another,  the  process  is  obscure,  the  king 
had  become  entitled  to  certain  customs  duties :  Magna  Carta 
recognizes  that  there  are  certain  ancient  and  right  customs 
(antiquae  et  rectae  consuetudines)  which-  merchants  can  be 
called  upon  to  pay,  and  with  these  it  contrasts  unjust  ex- 
actions, or  maletolts.  To  all  this  we  may  add  that  the 
obligations  of  tenure  supplied  the  king  with  an  army  which 
could  be  called  up  in  case  of  war. 

Here  we  shall  do  well  to  note  that  at  this  time  and  for 
several  centuries  afterwards,  no  distinction  was  drawn  between 
national  revenue  and  royal  revenue;  the  king's  revenue  was 
the  king's  revenue,  no  matter  the  source  whence  it  came ;  it 
was  his  to  spend  or  to  save,  as  pleased  him  best ;  all  was  his 
pocket  money ;  it  is  to  later  times  that  we  must  look  for  any 
machinery  for  compelling  the  king  to  spend  his  money  upon 
national  objects. 

But  large  as  had  been  the  king's  income,  and  free  as  he 
was  to  deal  with  it  in  his  own  way,  it  had  not  been  found 
large  enough.  Direct  taxes  had  been  imposed :  a  land  tax. 
for  some  time  called  Danegeld,  afterwards  carucage,  a  tax  of 
so  much  on  the  carucate  or  plough-land ;  then  as  already  said, 
under  Henry  the  Second  the  taxation  of  movables  begins. 
We  can  hardly  say  that  for  such  taxation  the  theory  of  the 
twelfth  century  requires  a  decree  of  the  national  assembly ;  it 
but  slowly  enters  mens'  heads  that  the  consent  of  a  majority  of 
an  assembly,  however  representative,  can  be  construed  to  be 


I  Taxation  by  Consent  95 

the  consent  of  all  men : — rather  the  idea  is  that  a  tax  ought 
to  be  a  voluntary  gift  of  the  individual  taxpayer,  and  now 
and  again  some  prelate  or  baron  is  strong  enough  to  protest 
that  he  individually  has  not  consented  and  will  not  pay.  The 
clauses  of  the  charter  of  1215,  to  which  reference  has  so  often 
been  made,  mark  a  very  definite  step : — no  scutage  or  aid 
(save  the  three  feudal  aids)  is  to  be  imposed  without  the 
counsel  of  the  prelates  and  tenants  in  chief.  But  these  clauses 
are  withdrawn  ;  it  seems  to  be  thought  hard  that  the  child 
Henry  should  be  compelled  to  make  this  concession,  par- 
ticularly at  a  moment  when  a  foreign  enemy  is  within  the 
realm.  However,  these  clauses  are  in  fact  observed;  Henry, 
though  he  sometimes  extorts  money  in  irregular  ways,  does 
not  attempt  to  tax  without  the  common  council  of  the  realm. 
This  council  is  as  yet  but  an  assembly  of  prelates  and 
magnates;  it  grants  him  taxes  on  land  and  on  movables, 
but  we  can  sec  a  doubt  growing  as  to  how  far  it  represents 
all  classes  of  men,  how  far  the  consent  of  the  unrepresented 
classes  is  necessary.  Henry  is  driven  to  negotiate  with  the 
inferior  clergy,  and  with  the  merchants.  In  1254  knights  of 
the  shire  are  summoned  to  treat  about  a  tax.  That  however 
remains  an  isolated  precedent,  and  the  parliament  summoned 
by  De  Montfort  can  hardly  be  called  a  precedent  at  all.  It  is 
not  therefore  until  1295  that  a  regular  practice  of  summoning 
the  representatives  of  the  commons  and  of  the  inferior  clergy 
begins1.  Each  estate  now  taxes  itself;  thus  in  1295  the  barons 
and  knights  of  the  shire  offered  an  eleventh,  the  burgesses  a 
seventh,  the  clergy  a  tenth.  On  this  followed  the  great  crisis 
of  1297.  The  rather  elaborate  circumstances  we  must  leave 
undescribed ;  Edward  was  in  great  need  of  money :  the  pope 
Boniface  VIII  had  published  the  Bull  Clericis  laicos  for- 
bidding the  clergy  to  pay  taxes  to  any  secular  power;  the 
barons,  again  led  by  the  Constable  and  Marshal,  Bohun  and 
Bigot,  refused  to  serve  in  Flanders,  contending  that  they  were 
not  bound  to  do  so  by  their  tenure ;  Edward  seized  the  wool, 
the  staple  commodity  of  England,  and  exacted  an  impost 
on  it ;  he  also  obtained  the  grant  of  an  aid  from  an  irregular 
assembly.  The  barons  armed  against  him,  and  he  was  forced 

1  For  Edward  I's  earlier  experiments  in  summoning  parliaments  see  Stubbs, 
Constitutional  History,  vol.  II,  §  213. 


g6  Constitutional  History  PERIOD 

to  withdraw  from  his  position,  to  conhrm  the  charters  with 
certain  additional  articles.  The  exact  form  of  those  articles 
is  of  some  importance.  According  to  what  in  all  probability 
is  the  authentic  version  of  this  Confirmatio  Cartarum,  he 
granted  that  the  recent  exactions,  aids  and  prises  should  not 
be  made  precedents,  that  no  such  aids,  tasks  or  prises  should 
be  taken  for  the  future  without  the  common  consent  of  the 
realm,  that  no  tax  like  that  recently  set  on  wool  should  be 
taken  in  future  witho'ut  the  common  consent  of  the  realm, 
saving  the  ancient  aids,  prises  and  customs.  We  have  also 
what  seems  to  be  either  an  imperfect  abstract  of  this  docu- 
ment, or  else  a  document  which  records  the  demands  of  the 
barons.  This  in  after  times  came  to  be  known  as  a  statute, 
Statutum  de  Tallagio  non  concedendo>  though  as  just  said 
in  all  probability  it  had  no  right  to  this  name1.  It  goes  some- 
what further  than  the  authentic  version ;  it  contains  the  word 
'tallage'  which  the  authentic  version  does  not,  it  does  not 
contain  a  saving  clause  for  the  king's  ancient  rights.  'No 
tallage  or  aid  shall  be  taken  without  the  will  ajid  consent  of 
all  the  archbishops,  bishops,  prelates,  earls,  knights,  burgesses 
and  other  free  men  of  the  realm/  Tallage,  as  we  have  seen, 
was  the  name  given  to  an  impost  set  by  the  king  on  his  own 
demesne  lands — in  origin  rather  a  right  of  the  landlord  than 
of  the  king.  Edward,  it  seems  pretty  certain,  did  not  con- 
sider that  he  had  resigned  this  right ;  in  1 304  he  tallaged  his 
demesne  lands.  But  though  this  particular  mode  of  raising 
money  may  thus  have  been  left  open  by  the  letter,  if  not  by 
the  spirit  of  the  law,  we  may  fairly  say  that  after  1295  the 
imposition  of  any  direct  tax  without  the  common  consent 
of  the  realm  was  against  the  very  letter  of  the  law.  I  say 
of  any  direct  tyx,  because  subsequent  events  showed  that  the 
question  of  indirect  taxes,  of  customs  duties  and  the  like,  had 
not  been  finally  settled.  And  the  common  consent  of  the 
realm  was  now  no  vague  phrase  ;  that  consent  had  now  its 
appropriate  organ  in  a  parliament  of  the  three  estates. 

As  to  the  administration  of  justice  by  the  parliament  and 
the  council,  we  shall  speak  hereafter,  but  first  a  little  should 
be  said  of  the  general  position  of  the  king.  And  first  as  to 
his  title ;  — 

1  Select  Charters,  pp.  487-98. 


I  Hereditary  Kingship  97 

The  kingship  had,  I  think,  by  this  time  become  definitely 
hereditary. 

Before  the  Conquest  the  English  kingship  was  an  elective 
kingship,  but  the  usage  hardening  into  law  was  for  the  great 
men,  the  witan,  to  elect  some  near  kinsman  of  the  dead  king. 
We  ought  to  recollect  in  this  context  that  the  then  existing 
law  as  to  private  inheritance  was  not  primogenitary  ;  ordinarily 
at  least  a  dead  man's  lands  and  his  goods  were  partible  among 
all  his  sons ;  all  primogenitary  rules  were  but  slowly  worked 
out  long  after  the  Norman  Conquest.  We  learn  from  Glanvill 
that  even  at  the  end  of  the  twelfth  century  one  of  the  most 
elementary  questions  was  still  open — A  has  two  sons,  B  and  C, 
the  elder,  B,  dies  during  A's  lifetime,  leaving  a  son,  D  ;  then  A 
dies ;  who  shall  inherit,  C  or  D  ?  English  law  has  not  yet 
made  up  its  mind  about  this  very  easy  problem — for  primo- 
geniture is  new.  So  we  must  not  think  of  private  law  as 
setting  a  model  for  the  succession  to  the  kingship ;  much 
rather  is  it  true  that  the  succession  to  a  kingship  or  other 
office  became  the  model  for  the  succession  to  land ;  primo- 
geniture spreads  from  office  to  property.  It  is  long  after 
the  Conquest  before  the  notion  that  the  kingship  is  strictly 
hereditary  becomes  firmly  rooted.  The  Conqueror  himself 
could  not  rely  upon  hereditary  right ;  he  relied  rather  on  gift 
or  devise.  Edward  had  given  him  the  kingdom.  I  believe 
that  the  notion  that  of  right  the  crown  should  have  gone  to 
Edgar  the  ^Etheling  only  makes  its  appearance  late  in  the  day. 
Neither  Rufus  nor  Henry  I  could  rely  on  hereditary  right 
even  according  to  the  notions  of  the  time ;  both  had  to  seek 
election  and  to  rely  upon  the  support  of  the  people.  Stephen 
again  was  compelled  to  assert  a  title  by  election.  Probably 
the  succession  of  Henry  the  Third  did  much  towards  fixing 
the  notion  of  hereditary  right.  John  has  been  spoken  of  by 
modern  writers  as  an  usurper ;  some  at  least  of  his  contem- 
poraries treated  him  as  an  elected  king.  Matthew  Paris  (who 
died  about  fifty  years  afterwards)  has  put  into  the  mouth 
of  Hubert  Walter,  Archbishop  of  Canterbury,  a  speech  made 
by  him  before  crowning  John — and  we  have  other  reason  for 
believing  that  something  of  the  sort  was  actually  said.  He 
distinctly  said  that  no  one  could  claim  the  crown  by  hereditary 

M.  7 


98  Constitutional  History  PERIOD 

right — kinship  to  the  late  king  would  give  a  preference ;  it  is 
natural  and  proper  to  elect  a  near  kinsman,  and  we  have 
elected  Earl  John1.  The  succession  of  Henry  III,  a  boy  of 
nine,  on  the  death  of  his  father  (there  was  no  one  else  to 
crown)  is  in  many  ways  an  important  event.  From  this  time 
forward  the  kingship  is,  I  think,  regarded  by  contemporaries 
as  definitely  hereditary.  Then  during  a  period  of  nearly  two 
centuries  the  late  king  has  always  an  obvious  heir  who 
succeeds  him — Henry  III,  the  three  Edwards  and  Richard  II 
follow  each  other  in  strictly  correct  order,  though  we  have  to 
remember  that  Edward  the  Second  is  deposed.  Edward  I 
was  the  first  king  who  reigned  before  he  was  crowned. 

Long  before  the  Conquest  the  English  kings  had  been 
crowned  and  anointed.  Whether  this  ceremony  was  borrowed 
straight  from  the  Old  Testament  or  became  ours  by  a  more 
roundabout  route  seems  uncertain ;  but  clearly  it  was  not 
considered  to  bestow  upon  the  king  any  indefeasible  title  to 
the  obedience  of  his  subjects ;  the  kings  are  easily  put  aside, 
and  no  bishop  objects  that  the  Lord's  Anointed  cannot  be 
removed  by  earthly  power ;  still  a  religious  sanction  is  given 
to  the  relation  between  king  and  people.  Also  the  king  swears 
an  oath.  The  oath  taken  by  Ethelred  the  Unready  we  have, 
and  it  is  in  these  terms, '  In  the  name  of  the  Holy  Trinity 
three  things  do  I  promise  to  this  Christian  people  my  subjects: 
first  that  God's  church  and  all  the  Christian  people  of  my 
realm  hold  true  peace ;  secondly  that  I  forbid  all  rapine  and 
injustice  to  men  of  all  conditions ;  thirdly  that  I  promise 
and  enjoin  justice  and  mercy  in  all  judgments,  that  the  just 
and  merciful  God  of  his  everlasting  mercy  may  forgive  us 
all2/ 

Coronation  oaths  are  of  considerable  interest,  sfnce  they 
throw  light  on  the  contemporary  conception  of  the  kingship. 
The  oath  of  Ethelred  may  be  taken  as  the  model  of  the  oaths 
sworn  by  king  after  king  in  the  days  after  the  Conquest.  The 
Conqueror,  we  are  told,  swore  that  he  would  defend  God's  holy 
churches  and  their  rulers,  that  he  would  'rule  the  whole  people 
with  righteousness  and  royal  providence,  that  he  would  estab- 

1  Select  Charters ',  p.  771. 

2  Liebermann,  Gesetze  der  Angelsachsen^  vol.  I,  p.  217. 


I  Coronation  Oaths  99 

lish  and  hold  fast  right  law,  and  utterly  forbid  rapine  and 
unrighteous  judgment.'  Rufus  swore  a  like  oath.  The  oath 
of  Henry  I  seems  to  have  been  precisely  that  of  Ethelred.  It 
is  probable  that  the  oaths  of  Richard,  John  and  Henry  III 
differed  somewhat  from  this  ancient  form.  They  promised 
to  observe  peace,  to  reverence  the  church  and  clergy,  to 
administer  right  justice  to  the  people,  to  abolish  evil  laws  and 
customs,  and  to  maintain  the  good.  It  is  to  be  regretted 
that  about  the  oath  of  Edward  I  there  is  some  doubt — to 
be  regretted  because  the  oath  of  Edward  II  differs  in  an 
important  manner  from  that  of  Henry  III — but  a  French 
form  has  been  preserved  which  is  possibly  that  used  by 
Edward  I,  and  it  has  these  words — 'and  that  he  will  cause 
to  be  made  in  all  his  judgments  equal  and  right  justice  with 
discretion  and  mercy,  and  that  he  will  grant  to  hold  the  laws 
and  customs  of  the  realm  which  the  people  shall  have  made 
and  chosen  (gue  les  gentes  de  people  averont  faitz  et  eslies), 
and  will  maintain  and  uphold  them  and  will  put  out  all  bad 
laws  and  customs1/  The  oath  of  Edward  II  is  much  more 
definite  and  precise  than  anything  that  has  yet  come  before 
us.  The  king  is  thus  catechized  by  the  Archbishop : 

Sir,  will  you  grant  and  keep  and  by  your  oath  confirm  to 
the  people  of  England  the  laws  and  customs  granted  to  them 
by  the  ancient  kings  of  England  your  righteous  and  godly 
predecessors,  and  especially  the  laws,  customs  and  privileges 
granted  to  the  clergy  and  people  by  the  glorious  King 
S.  Edward  your  predecessor?  I  grant  and  promise. 

Sir,  will  you  keep  towards  God  and  holy  church  and  to 
clergy  and  people  peace  and  accord  in  God  entirely  after  your 
power  ?  I  will  keep  them. 

Sir,  will  you  cause  to  be  done  in  all  your  judgments  equal 
and  right  justice  and  discretion  in  mercy  and  truth  to  your 
power  ?  I  will  so  do. 

Sir,  do  you  grant  to  hold  and  keep  the  laws  and  righteous 
customs  which  the  community  of  your  realm  shall  have  chosen 
(quas  vulgus  elegerit — les  quiels  la  communaute  de  vostre 
roiaume  aura  esleu),  and  will  you  defend  and  strengthen 

1  Constitutional  History  ^  vol.  II,  §179  note. 

7—2 


ioo  Constitutional  History  PERIOD 

them  to  the  honour  of  God  to  the  utmost  of  your  power? 
I  grant  and  promise1. 

You  will  observe  the  promise  to  confirm  the  laws  of  Saint 
Edward.  The  Confessor  has  by  this  time  become  a  myth  — 
a  saint  and  hero  of  a  golden  age,  of  a  good  old  time  ;  but 
there  are  documents  going  about  purporting  to  give  his  laws, 
which,  if  they  contain  many  things  inapplicable  to  these  later 
days  and  even  unintelligible  about  wergilds  and  so  forth, 
contain  also  some  far  from  pointless  tales,  as  to  how  the 
sheriffs  were  once  elected  by  the  people,  and  the  like.  But 
the  main  interest  of  the  oath  centres  in  the  words  leges  quas 
vulgus  elegerit  —  les  quids  la  communaute  de  vostre  roiaume 
aura  esleu.  Legislation,  it  is  now  considered,  is  the  function 
of  the  communitas  regni,  universitas  regni,  the  whole  body  of 
the^  realm  concentrated  in  a  parliament. 

s  And  now  what  was  the  king's  legal  position?  I  think 
that  we  may  in  the  first  place  say  with  some  certainty  that 
against  him  the  law  had  no  coercive  process  ;  there  was  no 
legal  procedure  whereby  the  king  could  either  be  punished  or 
compelled  to  make  redress.  This  has  been  denied  on  the 
ground  that  in  much  later  days  a  certain  judge  said  that  he 
had  seen  a  writ  directed  to  Henry  III  —  a  writ  beginning 
Praecipe  Regi  Henrico  —  a  writ  of  course  proceeding  theoreti- 
cally from  the  king,  telling  the  sheriff  to  order  King  Henry 
to  appear  in  court  and  answer  a  plaintiff  in  an  action.  But 
this  story  is  now  very  generally  disbelieved.  On  the  contrary, 
from  Henry  Ill's  reign  we  get  both  from  Bracton  and  from 
the  Plea  Rolls  the  most  positive  statements  that  the  king 
cannot  be  sued  or  punished.  In  this  meaning,  the  maxim 
that  the  king  can  do  no  wrong  is  fully  admitted.  If  t;he  king 
breaks  the  law  then  the  only  remedy  is  a  petition  addressed 
to  him  praying  him  that  he  will  give  redress.  On  the  other 
hand,  it  is  by  no  means  admitted  that  the  king  is  above  the 
law.  ^/Bracton  who,  you  will  remember,  was  for  twenty  years 
a  judge  under  Henry  III,  repeats  this 


king  isjpelow  no  man,  but  he  is  below  God  and  the  law  ;  law 
makes  the  king  ;  the  king  is  bound  to  obey  the  la  w^  though!? 


Constitutional  History  >  vol.  1  1,  §  249, 


I  Theory  of  Sovereignty  101 

he  break  it,  his  punishment  must  be  left  to  Godj,  Now  to  a 
stuHenFTresh  from  Austin's  jurisprudence  this  may  seem  an 
absurd  statement.  You  put  the  dilemma,  either  the  king  is 
sovereign  or  no;  if  he  be  sovereign  then  he  is  not  legally 
below  the  law,  his  obligation  to  obey  the  law  is  at  most  a 
moral  obligation  ;  on  the  other  hand  if  he  is  below  the  law, 
then  he  is  not  sovereign,  he  is  below  some  man  or  some  body 
of  men,  he  is  bound  for  example  to  obey  the  commands  of 
king  and  parliament,  the  true  sovereign  of  the  realm.  This 
may  be  a  legitimate  conclusion  if  in  Austin's  way  we  regard 
all  law  as  command ;  but  it  is  very  necessary  for  us  to  re- 
member that  the  men  of  the  thirteenth  century  had  no  such 
notion  of  sovereignty,  had  not  clearly  marked  off  legal  as 
distinct  from  moral  and  religious  duties,  had  not  therefore 
conceived  that  in  every  state  there  must  be  some  man  or 
some  body  of  men  above  all  law.  And  well  for  us  is  it  that 
this  was  so,  for  had  they  looked  about  for  some  such  sovereign 
man  or  sovereign  body  as  Austin's  theory  requires,  there 
can  be  little  doubt  that  our  king  would  have  become  an 
absolute  monarch,  a  true  sovereign  ruler  in  Austin's  sense — 
the  assembly  of  prelates  and  magnates  was  much  too  vague  a 
body,  and  a  body  much  too  dependent  for  its  constitution  on 
the  king's  will  to  be  recognized  as  the  depositary  of  sovereign 
power.  No,  we  have  to  remember  that  when  in  the  middle 
of  the  seventeenth  century  Hobbes  put  forward  a  theory  of 
sovereignty  which  was  substanti;illy  that  of  Bentham  and  of 
Austin,  this  was  a  new  thing,  and  it  shocked  mankind.  Law 
had  been  conceived  as  existing  independently  of  the  will 
of  any  ruler,  independently  even  of  the  will  of  God ;  God 
himself  was  obedient  to  law ;  the  most  glorious  feat  of  his 
Omnipotence  was  to  obey  law : — so  the  king,  he  is  below  the 
law,  though  he  is  below  no  man ;  no  man  can  punish  him  if 
he  breaks  the  law,  but  he  must  expect  God's  vengeance. 

While  we  are  speaking  of  this  matter  of  sovereignty,  it 
will  be  well  to  remember  that  our  modern  theories  run  counter 
to  the  deepest  convictions  of  the  Middle  Ages — to  their  whole 
manner  of  regarding  the  relation  between  church  and  state. 

1  Bracton,  De  Legibus  Angliac  (Rolls  Series),  l,  38;  History  of  English  Law, 
vol.  I,  pp.  1 60—1,  500 — i. 


IO2  Constitutional  History  PERIOD 

Though  they  may  consist  of  the  same  units,  though  every 
man  may  have  his  place  in  both  organisms,  these  two  bodies 
are  distinct.  The  state  has  its  king  or  emperor,  its  laws,  its 
legislative  assemblies,  its  courts,  its  judges ;  the  church  has  its 
pope,  its  prelates,  its  councils,  its  laws,  its  courts.  That  the 
church  is  in  any  sense  below  the  state,  no  one  will  maintain ; 
that  the  state  is  below  the  church  is  a  more  plausible  doctrine  ; 
but  the  general  conviction  is  that  the  two  are  independent, 
that  neither  derives  its  authority  from  the  other.  Obviously 
while  men  think  thus,  while  they  more  or  less  consistently  act 
upon  this  theory,  they  have  no  sovereign  in  Austin's  sense; 
before  the  Reformation  Austin's  doctrine  was  impossible. 

But  to  return.  The  troubles  of  Henry's  reign,  troubles 
which  he  brought  upon  himself  by  his  shiftless  faithless  policy, 
give  rise  to  other  thoughts.  Bracton  himself  in  one  place 
hints  that  possibly  if  the  king  does  wrong  and  refuses  justice 
the  univcrsitas  regni  represented  by  the  barons  may  do  justice 
in  the  king's  name  and  in  the  king's  court.  In  the  printed 
text  of  Bracton's  book  there  is  a  passage,  probably  interpolated 
by  some  annotator,  which  goes  far  beyond  this,  which  declares 
that  the  king  is  not  only  below  God  and  the  law,  but  below 
his  court,  that  is  to  say,  below  his  earls  and  barons,  for  the 
earls  (comites)  are  so  called  because  they  are  the  king's  fellows 
(socii\  and  he  who  has  a  fellow  has  a  master  (qui  habet  soctum, 
habet  magistmni) ;  they  therefore  are  bound  to  set  a  bridle 
upon  him  and  constrain  him  to  do  right1.  This  passage  clearly 
was  written  during  the  time  of  revolt,  the  revolt  which  led  to 
the  battles  of  Lewes  and  of  Evesham.  The  ideal  of  that  revolt 
was  a  small  council  of  magnates,  chosen  by  the  barons,  whom 
the  king  would  be  bound  to  consult,  who,  if  need  be,  would 
exercise  the  royal  powers.  That  ideal  was  not  realized — 
happily,  I  think  we  may  say,  for  it  was  an  oligarchical  ideal. 
The  law  was  left  as  it  was,  as  it  is  at  this  very  moment — that 
against  the  king  law  has  no  coercive  power,  it  has  no  punish- 
ment for  the  king,  it  cannot  compel  him  to  make  redress — or, 
as  we  say,  the  king  can  do  no  wrong.  It  was  left  to  later  ages 
to  work  out  consistently  the  other  side  of  our  modern  doctrine, 
namely,  that  though  the  king  can  neither  be  punished  nor  sued, 

1  Bractcm,  De  Legibus  Angliae>  J,  a 68. 


I  The  Power  of  Deposition  103 

no  other  person,  no  servant  of  the  king,  is  protected  against 
the  ordinary  legal  consequences  of  an  unlawful  act  by  the 
king's  command. 

The  power  of  deposing  a  king  is  a  somewhat  different 
matter.  The  next  century  presents  us  with  two  cases  of 
deposition,  that  of  Edward  II  and  that  of  Richard  II.  There 
was  talk  of  deposing  John,  there  was  talk  of  deposing  Henry  III. 
Apparently  the  common  opinion  of  the  time  was  quite  pre- 
pared for  the  deposition  of  a  king  who  would  not  rule 
according  to  law — any  notion  of  divine  hereditary  right  not 
to  be  set  aside  by  any  earthly  power  does  not  belong  to  this 
age.  But  the  only  precedents  for  deposing  a  king  belonged 
to  an  already  remote  time,  and  in  all  probability  were  but 
little  known.  The  events  of  1327  and  1399,  though  they 
prove  clearly  enough  that  the  nation  saw  no  harm  in  setting 
aside  a  bad  or  incompetent  king,  prove  also  that  there  was  no 
legal  machinery  for  doing  this.  We  shall  see  this  more  clearly 
when  these  events  come  before  us  hereafter.  The  idea  current 
in  the  thirteenth  century  is  not  so  much  that  of  a  power  to 
try  your  king  and  punish  him,  as  that  of  a  right  of  revolt,  a 
right  to  make  war  upon  your  king.  It  is  a  feudal  idea  and  a 
dangerous  one;  the  vassal  who  cannot  get  justice  out  of  his 
lord  may  renounce  his  fealty  and  his  homage,  may  defy  his 
lord,  may,  that  is,  renounce  his  affiance,  his  fealty.  This  is 
not  the  remedy  of  an  oppressed  nation,  it  is  the  remedy  of  an 
oppressed  vassal. 

This  would  naturally  lead  us  to  speak  of  feudalism  as  a 
political  or  anti-political  force ;  that  is  a  subject  which  we  will 
still  postpone;  but  a  little  more  may  here  be  added  about  the 
theory  of  the  kingship.  Already  in  Henry  IIFs  reign  it  is  the 
doctrine  of  the  royal  judges,  who  would  not  be  disposed  to 
narrow  unduly  the  scope  of  their  master's  powers,  that  the 
king  cannot  make  laws  without  the  consent  of  his  prelates 
and  barons.  This  is  brought  out  by  the  treatment  which  a 
famous  passage  in  the  Institutes  receives  at  their  hands — sed 
et  quod  principi  placuit  legis  habet  vigor  em.  Now  under 
Henry  II,  the  writer  whom  we  call  Glanvill  does,  as  it  seems 
to  me,  hint  that  these  words  are  true  of  the  king  of  England ; 
his  words  however  are  not  very  plain,  and  it  is  possible  that 


IO4  Constitutional  History  PERIOD 

he  did  not  wish  them  to  be  very  plain ;  however  he  brings  out 
clearly  the  matter  of  fact  that  Henry  legislates  with  the  counsel 
of  the  magnates,  consilio  procerum*.  In  Bracton  we  may  see 
a  distinct  step — he  cites  the  words  of  the  Institutes,  but  so  as 
to  give  them  a  quite  new  meaning ;  this  I  take  to  be  a  bit  of 
deliberate  perverseness,  something  not  far  removed  from  a 
jest;  he  knows  that  the  words  in  their  proper  sense  are  not 
true  of  King  Henry — the  law  has  made  him  king,  it  is  by 
virtue  of  the  law  that  he  reigns,  and  this  law  sets  limits  to  the 
placita principis*.  Undoubtedly,  however,  during  Henry  Ill's 
long  reign  a  great  deal  of  what  we  should  call  law  making 
was  done  without  the  assent  of  the  national  assembly.  The 
common  law  grew  very  rapidly;  it  could  grow  very  rapidly 
because  the  opinions  of  the  time  conceded  to  the  king  or  to 
the  king  and  his  selected  councillors  a  considerable  power  of 
making  new  remedies — new  modes  of  litigation,  new  forms 
of  action.  It  is  not  at  once  seen  that  to  give  new  remedies 
is  often  enough  to  alter  the  substantive  law  of  the  land. 
Gradually  however  this  is  seen,  and  complaints  against  these 
new  actions  become  loud,  chiefly  because  they  draw  away 
litigants  from  the  feudal  courts  and  from  the  ecclesiastical 
courts.  Bracton  writing  towards  the  end  of  the  reign  has  left 
us  a  curious  transitional  doctrine.  The  king  can  make  new 
writs,  new  forms  of  action  ;  in  strictness  such  a  writ  requires 
the  consent  of  the  magnates,  at  least  if  it  concerns  land  (for 
land  is  the  subject  of  the  feudal  jurisdictions);  still  the  consent 
of  the  magnates  may  be  taken  for  granted  ;  they  consent  if 
they  do  not  expressly  dissent ;  and  after  all  it  is  the  king's 
duty  to  find  a  remedy  for  every  wrong — his  solemn  sworn 
duty.  Such  a  theory  could  hardly  be  permanent,  and  one  of 
the  definite  results  attained  by  what  we  call  the  Barons'  War 
was  that  a  limit  was  set  to  the  king's  writ-making  power.  In 
Edward's  day  we  find  it  admitted  that  new  writs  cannot  be 
made  without  the  action  of  the  national  assembly — they  must 

1  Tractatus  de  Lcgibus  Angliac.  Prologus.  **  Leges  namque  Anglicanas,  licet 
non  scriptas,  Leges  appellari  non  videtur  absurd um  (cum  hoc  ipsum  lex  fit  'quod 
principi  placet,  legis  habet  vigorem')  eas  scilicet,  quas  super  dubiis  in  consilio 
definiendis,  procerum  quidem  consilio,  et  principis  accidente  authoritate,  constat 
esse  promulgatas." 

8  De  Legibus  Angliae^  i,  38. 


I  The  Law  Courts  105 

be  sanctioned  by  statute;  indeed  so  strict  has  this  rule  become 
that  in  1285  it  requires  a  statute  to  permit  the  clerks  in  the 
King's  Chancery  to  vary  the  old  writs  slightly  so  as  to  fit  new 
cases  as  they  arise,  but  only  new  cases  which  fall  under  rules 
of  law  already  established  and  which  require  remedies  which 
are  already  given.  Henceforth  the  sphere  for  judge-made  law 
is  hemmed  in  by  the  existing  remedies,  the  writs  that  have 
already  been  made;  to  introduce  a  new  form  of  action  requires 
a  statute.  Henceforth  for  nearly  two  centuries  the  growth  of 
unenacted  law  is  very  slow  indeed. 


E.     Administration  of  Justice. 

This  brings  us  to  the  administration  of  justice.  We  have 
already  had  occasion  to  speak  of  courts  of  various  kinds. 
Some  repetition  is  unavoidable.  The  further  back  we  trace 
our  history  the  more  impossible  is  it  for  us  to  draw  strict 
lines  of  demarcation  between  the  various  functions  of  the  state: 
the  same  institution  is  a  legislative  assembly,  a  governmental 
council  and  a  court  of  law;  this  is  true  of  the  witenagemot; 
it  is  true,  though  perhaps  less  true  of  the  Curia  of  the  Norman 
kings  ;  traces  of  its  truth  are  left  in  our  own  time ;  our  highest 
court  of  law  is  to  this  day  an  assembly  of  prelates  and  nobles, 
of  lords  spiritual  and  temporal  in  parliament  assembled ; 
everywhere,  as  we  pass  from  the  ancient  to  the  modern,  we  see 
what  the  fashionable  philosophy  calls  differentiation.  We 
will  now  take  a  brief  review  of  the  whole  system  of  law  courts 
as  it  stands  in  Edward  the  First's  day. 

There  are  we  may  say  courts  of  four  great  kinds,  (i)  There 
are  the  very  ancient  courts  of  the  shire  and  the  hundred ; 
these  we  may  call  popular  courts,  or  still  better,  communal 
courts — they  are  courts  which  in  time  past  have  been  consti- 
tuted by  the  free  men  of  the  district ;  they  are  courts  which 
are  now  constituted  by  the  freeholders  of  the  district :  but  a 
good  many  of  the  hundred  courts  have  fallen  into  private 
hands,  (2)  There  are  the  feudal  courts,  courts  which  have 
their  origin  in  tenure,  in  the  relation  between  man  and  lord ; 
there  is  the  manorial  court  baron  for  the  freehold  tenants  of 
the  manor,  in  which  they  sit  as  judges ;  there  is  the  hall-moot 


io6  Constitutional  History  PERIOD 

or  customary  court  of  the  manor  for  the  tenants  in  villeinage, 
in  which  (at  least  according  to  the  theory  of  later  times)  the 
lord's  steward  is  the  only  judge.  (3)  There  are  the  king's  own 
central  courts.  (4)  There  are  the  courts  held  by  the  king's 
itinerant  justices — visitatorial  courts,  we  may  for  the  moment 
call  them.  We  leave  out  of  sight  the  ecclesiastical  courts,  or 
courts  Christian,  though  these  were  important  courts  for  the 
laity  as  well  as  for  the  clergy. 

Now  the  preliminary  notions  with  which  we  ought  to  start 
are,  I  think,  these : — (a)  The  communal  courts  of  the  shire  and 
the  hundred  are,  to  start  with,  fully  competent  courts  for  all 
causes  criminal  as  well  as  civil.  The  kings  of  the  pre-Conquest 
period  had  apparently  no  desire  to  draw  away  justice  from 
these  courts.  Over  and  over  again  they  ordain  that  no  one  is 
to  bring  his  suit  before  the  king  before  justice'  has  failed  him 
in  the  hundred  and  the  shire.  We  must  not  think  of  the 
witenagemot  even  as  a  court  of  appeal — to  introduce  the 
notion  of  an  appeal  from  court  to  court  is  to  introduce  a  far 
too  modern  conception.  The  suitor  who  comes  before  the  king 
comes  there  not  to  get  a  mistake  corrected  but  to  lodge  a 
complaint  against  his  judges;  they  have  \tf!lfully  denied  him 
justice. 

(b)  By  the  side  of  the  ancient  courts  there  have  grown  up 
the  feudal  courts.     This  process  had  in  all  probability  been 
going  on  for  a  century  before  the  Conquest     After  the  Con- 
quest the  principle  seems  admitted  that  any  lord  who  has 
tenants  may,  if  he  can,  hold  a  court  for  them.     In  this  disputes 
between  tenants  are  adjudged ;    in  particular  if  land  is  in 
dispute  and  both  parties  admit  that  the  land  is  holden  of  this 
lord,  then  his  court  is  the  proper  tribunal.     A  great  deal  of 
jurisdiction  has  thus  been  taken  away  from  the  communal 
courts,  but  jurisdiction  of  a  civil  kind.     Mere  tenure  cannot 
give  a  criminal  jurisdiction  ;  if  the  lord  has  this,  he  has  it  by 
virtue  of  some  grant  from  the  king. 

(c)  After  the  Norman  Conquest  the  king's  court  has,  we 
may  say,  three  main  functions :  (i)  as  of  old  it  is  a  court  of 
last  resort  in  case  of  default  of  justice,  (ii)  on  feudal  principle 
it  is  a  court  for  the  tenants  in  chief,  (iii)  it  is  admitted  that 
there  are  certain  causes  in  which  the  king  has  a  special  interest 


I  Pleas  of  the  Crown  107 

and  which  must  come  either  before  his  own  court  or  before  a 
court  held  by  some  officer  of  his : — these  are  the  pleas  of  the 
crown. 

We  have  now  to  watch  the  growth  of  this  royal  jurisdiction 
and^will  begin  by  speaking  of  the  pleas  of  the  crown. 

Already  before  the  Conquest  we  find  that  there  are 
certain  criminal  cases  in  which  the  king  is  conceived  to  have  a 
special  interest.  Thus  in  the  Laws  of  Canute  it  is  said  '  These 
are  the  rights  which  the  king  has  over  all  men  in  Wessex— 
mttnd-bryce,  hdm-sdcne^forstal.jlymena-fyrm^e  and  fyrd-wite1! 
Apparently  in  case  of  any  of  these  crimes  no  lord  may  presume 
to  exercise  jurisdiction — unless  it  has  been  expressly  granted 
to  him  ;  such  cases  must  come  before  the  king,  or  his  officer 
the  sheriff,  and  the  consequent  forfeitures  are  specially  the 
king's.  A  word  as  to  the  nature  of  these  crimes: — mund- 
bryce  is  breach  of  the  king's  special  peace  or  protection,  this 
as  we  shall  soon  see  becomes  a  matter  of  the  utmost  moment; 
hdm-s6cne  is  housebreaking,  the  seeking  of  a  man  in  his 
house ;  forstal  seems  to  mean  ambush  ;  flymena-fyrwSe  the 
receipt  of  outlaws  ;  fyrd-wite  the  fine  for  neglecting  the  sum- 
mons to  the  army.  In  these  cases,  it  is  conceived  there  is 
something  more  than  ordinary  crime,  e.g.  homicide  or  theft, 
there  is  some  injury  to  the  king,  some  attack  upon  his  own 
peculiar  rights. 

The  next  list  of  pleas  of  the  crown  that  we  get  is  found  in 
the  Leges  Henrici  Primi  (1108-18,  §  10).  It  is  much  longer 
and  so  instructive  that  I  will  translate  it :  '  Breach  of  the  king's 
peace  given  by  his  hand  or  writ ;  danegeld ;  contempt  of  his 
writs  or  precepts;  death  or  injury  done  to  his  servants;  treason 
and  breach  of  fealty ;  every  contempt  or  evil  word  against 
him;  [castle  building — castellatio  trium  scannorum^  outlawry; 
theft  punishable  with  death;  murder;  counterfeiting  his 
money;  arson;  hamsoken\  forestal\  fyrdwite\  flymena- 
fyrm^e\  premeditated  assault;  robbery;  streetbreach;  taking 
the  king's  land  or  money;  treasure  trove;  shipwreck;  waif  of 
the  sea;  rape;  forests;  reliefs  of  barons;  fighting  in  the  king's 
house  or  household  ;  breach  of  peace  in  the  army;  neglecting 
to  repair  castles  or  bridges;  neglecting  a  summons  to  the 

1  Liebermann,  Gtsetze  der  Angthacksen,  vol.  I,  p.  317. 


io8  Constitutional  History  PERIOD 

army;  receiving  an  excommunicate  or  outlaw;  breach  of 
surety;  flight  in  battle;  unjust  judgment;  default  of  justice; 
perverting  the  king's  law1/  It  is  a  most  disorderly  list.  The 
writer  has  apparently  strung  together  all  cases  in  which  either 
in  ancient  or  modern  times  the  king  has  asserted  a  special 
interest.  Observe  how  criminal  cases  are  mixed  up  with  the 
king's  fiscal  rights — by  fiscal  rights  I  mean  such  rights  as  that 
to  treasure  trove,  to  shipwreck  and  goods  thrown  up  by  the 
sea.  This  is  very  instructive ;  one  of  the  chief  motives  that 
the  king  has  for  amplifying  his  rights  is  the  want  of  money ; 
the  criminal  is  regarded  as  a  source  of  income.  It  will  strike 
you  that  by  a  little  ingenuity  on  the  part  of  royal  judges 
almost  all  criminal  cases  and  very  many  civil  cases  also  can 
be  brought  within  the  terms  of  this  comprehensive  list.  But 
you  will  further  observe  that  no  such  generalization  has  yet 
been  made,  it  is  not  yet  said  that  all  crime,  or  all  serious 
crime,  or  all  acts  of  violence  are  causes  for  royal  cognizance. 

There  is  one  term,  however,  which  occurs  in  both  these 
lists  which  can  be  so  extended  as  to  cover  a  very  large  space — 
that  is  the  mund-bryce  of  Canute's  laws,  which  in  the  Leges 
Henrici  appears  as  infortio  pads  regiae  per  manum  vel  breve 
datum.  Let  us  go  back  a  little.  The  idea  of  law  is  from  the 
first  very  closely  connected  with  the  idea  of  peace — he  who 
breaks  the  peace,  puts  himself  outside  the  law,  he  is  outlaw. 
But  besides  the  general  peace  which  exists  at  all  times  and  in 
all  places,  and  which  according  to  ancient  ideas  is  the  peace 
of  the  nation  rather  than  of  the  king,  every  man  has  his  own 
special  peace  and  if  you  break  that  you  injure  him.  Thus  if 
you  slay  A  in  B's  house,  not  only  must  you  pay  A's  price  or 
wergild  to  his  kinsfolk,  but  you  have  broken  B's  peace  and 
you  will  owe  B  a  sum  of  money,  the  amount  of  which  will 
vary  with  B's  rank — you  have  broken  B's  peace  or  mund\  the 
mund  of  an  archbishop  is  worth  so  much,  that  of  an  ealdorman 
so  much,  and  so  forth.  Like  other  men  the  king  has  his  peace. 
In  course  of  time,  we  may  say,  the  king's  peace  devours  all 
other  peaces — but  that  has  not  been  effected  until  near  the 
end  of  the  twelfth  century.  In  the  Leges  Edwardi  Conftssoris 
(§  12)  which  represent  the  law  of  the  first  half  of  the  century, 

1  Liebermann,  Ceselze  der  Angelsachseu%  vol.  I,  p.  556. 


I  Extension  of  the  Kings  Peace*       109 

the  king's  peace  covers  but  certain  times,  places,  and  persons. 
Pax  Regis  multiplex  est — the  king's  peace  is  manifold.  First 
there  is  that  which  he  gives  with  his  own  hand.  Then  there 
is  the  peace  of  his  coronation  day,  and  this  extends  eight  days. 
Then  the  peace  of  the  three  great  festivals,  Christmas,  Easter, 
Pentecost:  each  endures  for  eight  days.  Then  there  is  the 
peace  of  the  four  great  highways — the  four  ancient  Roman 
roads  which  run  through  England.  To  commit  a  crime  in 
one  of  these  peaces  is  to  offend  directly  against  the  king. 

Before  the  end  of  the  century  there  has  been  a  great 
change,  a  great  simplification  ;  apparently  it  has  been  effected 
thus : — Under  the  Norman  kings,  the  mode  of  bringing  a 
criminal  to  justice  was  called  an  appeal  (appellum)\  this  word 
is  not  used  in  our  modern  way  to  imply  the  going  from  one 
court  to  a  superior  court — but  means  an  accusation  of  crime 
brought  by  the  person  who  has  been  wronged — the  person, 
e.g.,  whose  goods  have  been  stolen  or  who  has  been  wounded. 
Well,  the  king's  justices  seem  to  have  allowed  any  appellor  to 
make  use  of  the  words  'in  the  king's  peace'  whenever  he 
pleased,  and  did  not  allow  the  appellee  to  take  exception  to 
these  words — did  not  allow  him  to  urge  that  though  he  might 
have  committed  theft  or  homicide  still  he  had  not  broken  the 
king's  peace,  since  the  deed  was  not  done  against  a  person,  or 
at  a  time  or  place  which  was  covered  by  the  king's  peace. 
Fictions  of  this  kind  are  very  common  in  our  legal  history, 
they  are  the  means  whereby  the  courts  amplify  their  juris- 
diction. Any  deed  of  violence  then,  any  use  of  criminal  force, 
can  be  converted  into  a  breach  of  the  king's  peace  and  be 
brought  within  the  cognizance  of  the  king's  own  court 

Further,  under  Henry  II  we  find  a  new  criminal  procedure 
growing  up  by  the  side  of  the  appeal,  once  a  specially  royal 
procedure — this  is  the  procedure  by  way  of  presentment  or 
indictment.  Under  the  Assize  of  Clarendon  royal  justices 
are  sent  throughout  England  to  inquire  by  the  oaths  of  the 
neighbours  of  all  robberies,  and  other  violent  misdeeds ;  those 
who  are  accused,  presented,  indicted  by  the  sworn  testimony 
of  the  neighbours,  by  the  juries  of  the  hundreds  and  the  vills, 
are  sent  to  the  ordeal.  This  is  an  immense  step  in  the  history 
of  criminal  law.  A  crime  is  no  longer  regarded  as  a  matter 


no  Constitutional  History  PERIOD 

merely  between  the  criminal  and  those  who  have  directly 
suffered  by  his  crime — it  is  a  wrong  against  the  nation,  and 
the  king  as  the  nation's  representative.  This  procedure  by 
indictment  the  king  keeps  in  his  own  hands ;  it  is  a  specially 
royal  procedure ;  those  who  are  thus  accused  of  crime  must 
be  brought  before  the  king's  own  justices. 

A  parallel  movement,  the  details  of  which  are  as  yet  very 
obscure,  has  been  giving  to  all  the  graver  crimes  the  character 
of  felony1.  The  origin  and  original  meaning  of  the  word  are 
disputed,  but  the  best  authorities  now  tell  us  that  it  is  Celtic 
and  carries  at  first  the  meaning  of  baseness ;  it  is  said  to  be 
connected  with  the  Latin  fallere>  and  our  verb  to  fail.  Be  that 
as  it  may,  two  things  seem  fairly  clear,  (i)  that  the  word  came 
to  us  from  France  with  the  Normans,  (2)  that  it  then  meant  the 
specifically  feudal  crime,  the  most  heinous  of  all  crimes  in  the 
opinion  of  that  age,  the  betrayal  of  one's  lord,  or  treachery 
against  one's  lord.  For  some  time  it  is  thus  used  in  England; 
thus  in  the  Leges  Henrici  felony  is  still  one  crime  among  many. 
We  observe  two  things  about  it,  that  it  is  a  crime  punished  by 
death,  and  that  it  is  a  crime  which  causes  an  escheat  of  the 
land  which  the  criminal  holds.  But  before  the  end  of  the 
twelfth  century  we  find  that  this  word  has  lost  its  specific 
signification,  that  it  has  a  wide  meaning.  Whenever  an  appeal 
is  made,  be  it  for  homicide,  or  wounding,  or  theft,  the  appellor 
always  states  that  it  was  done  not  only  in  pace  domini 
Regis,  but  also  in  felonia.  We  even  find  that  these  words 
are  absolutely  essential;  if  they  are  not  used  the  appeal  is 
null:  Here  again,  I  take  it,  fiction  has  been  at  work — the 
judges  have  encouraged  the  use  of  this  term,  and  have  not 
allowed  accused  persons  to  protest  that  though  there  might 
be  homicide,  wounding  or  robbery,  still  there  was  no  felony. 
Two  motives  made  for  this : — the  old  system  of  money  com- 
positions was  breaking  down ;  at  the  beginning  of  the  twelfth 
century  it  is  still  in  existence,  though  capital  punishment  has 
been  gaining  ground ;  at  the  end  of  the  century  it  has  dis- 
appeared— every  crime  of  great  gravity  has  become  a  capital 
offence.  Secondly,  the  principle  that  felony  is  a  cause  of 

1  The  subject  is  treated  at  length  in  the  History  of  English.  Law,  vol.  i, 
pp.  303—5,  vol.  II,  pp.  463—511, 


I  Civil  Jurisdiction  1 1 1 

escheat,  made  it  very  desirable  in  the  king's  eyes,  and  the  eyes 
of  the  lords,  that  as  many  crimes  as  possible  should  be  brought 
under  this  denomination.  Thus  all  the  graver  crimes  became 
felonies.  We  never  get  to  a  definition  of  felony ;  but  we  do 
get  to  a  list  of  felonies. 

I  think  we  may  say  that  from  the  beginning  of  the 
thirteenth  century  onwards,  all  causes  that  are  regarded  as 
criminal  are  pleas  of  the  cro\vnyplacita  coronae,  save  some  petty 
offences  which  are  still  punished  in  the  local  courts,  but  even 
over  these  the  sheriff  is  now  regarded  as  exercising  a  royal 
jurisdiction.  To  this  point  we  shall  return  once  more;  we 
have  meanwhile  to  watch  the  growth  of  royal  jurisdiction  in 
civil  causes. 

This  is  by  no  means  a  simple  matter ;  the  process  is  very 
slow,  and  indeed  even  in  the  present  century  our  civil  procedure 
bore  witness  of  a  time  when  the  king's  court  had  not  yet  taken 
upon  itself  to  act  as  a  court  of  first  instance  in  the  ordinary 
disputes  of  ordinary  people.  We  may,  however,  indicate  six 
principles  which  serve  to  bring  justice  to  the  king's  court 

(1)  From  the  outset  it  is  a  court  to  which  one  may  go, 
for  default  of  justice  in  lower  courts.     Under  the  Norman 
kings  we  find  that  frequently  a  litigant,  who  in  the  ordinary 
course  is  going  to  sue  in  the  court  of  a  feudal  lord,  will  go  to 
the  king  in  the  first  instance,  and  procure  a  writ,  a  mandate 
directing  the  lord,  ordering  him  to  do  justice  in  his  court  to 
the  applicant,  and  adding  a  threat,  quod  nisi  feceris  vicecomes 
metis  faciet — if  you  won't  do  it  my  sheriff  will — the  action 
will  be  removed  out  of  your  court  into  the  county  court,  and 
thence  it  can  be  removed  into  the  king's  own  court     This  is 
a  writ  de  recto  tenendo,  a  writ  of  right 

(2)  Henry  II  must,  it  would  seem,  have  ordained  that  no 
action  for  freehold  land  shall  be  begun  in  a  manorial  court 
without  such  a  writ     I  say  he  must  have  ordained  it:   we 
have  no  direct  evidence  of  this :  but  Glanvill  lays  down  the 
principle  in  the  broadest  terms,  no  one  need  answer  for  his 
freehold  without  the  king's  writ,  a  writ  directing  the  lord  to 
do  right — and  we  can  say  pretty  positively  that  this  was  not 
law  before  Henry's  day.     You  will  notice  that  it  is  a  serious 
invasion  on  feudal  principles ;  when  freehold  is  at  stake,  the 


ii2  Constitutional  History  PERIOD 

lord  cannot  hold  his  court  or  do  justice  until  the  king  sets  him 
in  motion — the  jurisdiction  may  spring  out  of  tenure,  but  it  is 
not  beyond  royal  control.  The  excuse  for  such  an  interference 
may  lie  in  that  royal  protection  of  possession  of  which  we  are 
soon  to  speak. 

(3)  In  an  action  for  land  in  a  royal  court  begun  by  writ 
of  right,  Henry  II  by  some  ordinance,  the  words  of  which 
have  not  come  down  to  us  but  which  was  known  as  the  grand 
assize,  enabled  the  holder  of  the  land  to  refuse  trial  by  battle 
and  to  put  himself  upon  the  oath  of  a  body  of  twelve  neighbours 
sworn  to  declare  which  of  the  two  parties  had  the  greater  right 
to  the  land.     This  was  called  putting  oneself  on  the  grand 
assize ;  and  the  body  of  sworn  neighbours  was  known  as  the 
grand  assize. 

(4)  Henry  II,  as  we  have  before  remarked,  took  seisin, 
possession  as  distinct  from  ownership,  under  his  special  pro- 
tection— men  who   consider  that  land  is  unjustly  withheld 
from  them  are  not  to  help  themselves ;   there  is  to  be  no 
disseisin   without  a  judgment      He  who   is  thus  disseised 
shall  be  put  back  into  possession  without  any  question  as  to 
his  title.     This  protection  of  possession  is,  I  think,  closely 
connected  with  that  extension  of  the  king's  peace  which  we 
have  been  watching.     He  who  takes  upon  himself  to  eject 
another  from  his  freehold,  breaks  the  peace,  and  the  peace  is 
the  king's.     This  possessory  procedure  the  king  keeps  in  his 
own  hands — it  is  a  royal  matter,  the  feudal  courts  have  nothing 
to  do  with  it.     Thus  there  grows  up  a  large  class  of  actions 
(the  possessory  assizes)  relating  to  land,  which  are  beyond 
the  cognizance  of  any  but  the  king's  justices,  and  these  justices 
take  good  care  that  the  limits  of  these  actions  shall  not  be 
narrow ;  perhaps  indeed  they  are  not  always  very  careful  to 
draw  the  line  between  disputes  about  possession  which  belong 
to  them,  and  disputes  about  ownership  which  should  go  to 
the  manorial  courts. 

(5)  If  we  turn  back  to  the  list  of  royal  rights  contained  in 
the  Leges  Henrici^  we  find  among  them — -placitum  brevium  vel 
praeceptorum    ejus    contemptorum — pleas    touching   the  con- 
tempt of  his  writs  or  precepts.     Now  here  is  an  idea  of  which 
great  use  can  be  made :  B  detains  from  A  land  or  goods  or 


I  The  Writ  Praecipe  113 

owes  A  a  debt ;  this  may  not  be  a  case  for  the  royal  jurisdic- 
tion— but  suppose  that  the  king  issues  a  writ  or  precept 
ordering  B  to  give  up  the  land  or  goods  or  to  pay  the  debt, 
and  B  disobeys  this  order,  then  at  once  the  royal  jurisdiction 
is  attracted  to  the  case.  The  king's  chancellor  begins  to  issue 
such  writs  with  a  liberal  hand.  A  writ  is  sent  to  the  sheriff  in 
such  words  as  these:  Command  B  (Praecipe  B)  that  justly  and 
without  delay  he  give  up  to  A  the  land  or  the  chattel  or  the 
money  which,  as  A  says,  he  unjustly  detains  from  him,  and  if 
he  will  not  do  so  command  him  to  be  before  our  court  on  such 
a  day  to  answer  why  he  hath  not  done  it.  Thus  the  dispute 
between  A  and  B  is  brought  within  the  sphere  of  the  king's 
justice;  if  B  is  in  the  wrong  he  has  been  guilty  of  contemning 
the  king's  writ.  Such  writs  in  Henry  IPs  time  are  freely  sold 
to  litigants :  but  this  is  somewhat  too  high-handed  a  proceed- 
ing to  be  stood,  for  in  the  case  of  land  being  thus  demanded, 
the  manorial  courts  are  deprived  of  their  legitimate  jurisdic- 
tion. So  we  find  that  one  of  the  concessions  extorted  from 
John  by  Magna  Carta  is  this  :  The  writ  called  Praecipe  shall 
not  be  issued  for  the  future,  so  as  to  deprive  a  free  man  of  his 
court,  i.e.  so  as  to  deprive  the  lord  of  the  manor  of  cases  which 
ought  to  come  to  his  court,  his  court  being  one  of  his  sources 
of  income1.  To  a  certain  extent  in  cases  of  land  this  puts 
a  check  on  the  acquisitiveness  of  the  royal  court.  But  even  as 
regards  land,  it  is  evaded  in  many  different  ways,  in  particular, 
by  an  extension  of  the  possessory  actions  which  make  them 
serve  the  purpose  of  proprietary  actions.  As  regards  chattels 
and  debts  the  king  has  a  freer  hand. 

(6)  The  notion  of  the  king's  peace  is  by  no  means 
exhausted  when  it  has  comprehended  the  whole  field  of 
criminal  law :  mere  civil  wrongs,  '  torts '  as  we  call  them,  can 
be  brought  within  it — a  mere  wrongful  step  upon  your  land, 
a  mere  wrongful  touch  to  your  goods  or  to  your  person  can  be 
regarded  as  a  breach  of  the  peace ;  any  wrongful  application 
of  force,  however  slight,  can  be  said  to  be  made  vi  et  armis  et 
contra  pacen*  domini  Regis :  in  such  cases  there  may  be  no 
felony  and  no  intention  to  do  what  is  wrong — I  may  believe 
the  goods  to  be  mine  when  they  are  yours,  and  carry  them  off 

1  M.  C.  c.  54.    McKechnie,  pp.  405  —  13. 
M.  8 


114  Constitutional  History  PERIOD 

in  that  belief ;  still  this  may  be  called  a  breach  of  the  peace. 
Hence  in  the  thirteenth  century  a  large  class  of  writs  grows  up 
known  as  writs  of  trespass  ;  for  a  long  time  the  procedure  is 
regarded  as  half-civil,  half-criminal:  the  vanquished  defendant 
has  not  only  to  pay  damages  to  the  plaintiff,  he  has  to  pay 
a  fine  to  the  king  for  the  breach  of  the  peace.  Gradually  (but 
this  is  not  until  the  end  of  the  Middle  Ages)  the  fine  becomes 
an  unreality :  actions  of  trespass  are  regarded  as  purely  civil 
actions — and  in  course  of  time  this  form  of  action  and  forms 
derived  out  of  it  are  made  to  do  duty  instead  of  all,  or  almost 
all,  the  other  forms. 

Armed  with  these  elastic  principles  it  was  easy  for  the 
king's  courts  to  amplify  their  province.  By  the  beginning  of 
Edward's  reign  we  may,  I  think,  say  that  all  serious  obstacles 
to  the  royal  jurisdiction  had  been  removed.  The  royal  courts 
had  in  one  way  and  another  become  courts  of  first  instance 
for  almost  all  litigation.  But  the  extremely  active  legislation 
of  his  reign  and  the  growth  of  parliament  set  a  limit  to  the 
invention  of  new  actions.  It  was  now  recognized  that  there 
were  a  certain  number  of  actions  to  which  no  addition  could 
be  made  except  by  statute.  There  were  a  certain  number  of 
writs  in  the  royal  Chancery;  these  were  at  the  disposal  of 
every  subject ;  they  were  to  be  had  on  payment  of  the  cus- 
tomary fees  ;  they  could  not  be  denied  ;  by  these  writs  actions 
were  began,  were  originated ;  they  were  brevia  originalia, 
original  writs.  A  certain  power  of  varying  the  stereotyped 
forms  was  allowed  by  the  Statute  of  Westminster  II  (1285),  and 
of  this  in  course  of  time  some  good  use  was  made;  but  from 
Edward's  day  down  to  the  middle  of  the  present  century  the 
development  of  common  law  was  fettered  by  this  system  of 
original  writs — writs  which  had  been  devised  for  the  purpose 
of  bringing  before  the  king's  court  litigation  which  in  more 
ancient  times  would  have  gone  to  other  tribunals. 

But  the  king's  court  could  not  have  succeeded  in  thus 
extending  the  sphere  of  its  activity  if  it  had  not  been  able  to 
offer  to  suitors  advantages  which  they  could  not  get  elsewhere. 
Royal  justice  was  a  good  article — that  is  to  say,  a  masterful 
thing  not  to  be  resisted.  There  were  many  processes  which 
the  king  could  give  which  were  not  to  be  had  in  lower  courts. 


1  Ancient  Methods  of  Proof  115 

To  describe  some  of  these  would  take  us  too  deeply  into  thai 
technicalities, of  legislation.  But  there  is  one  royal  boon,  regale 
beneficium,  as  Glanvill  calls  it,  which  has  had  a  most  important 
influence  on  the  whole  of  our  national  history — trial  by  jury. 
In  order  to  understand  its  history  we  must  say  a  little  about 
those  modes  of  trial  and  of  proof  which  in  course  of  time  gave 
way  before  it 

Now  the  first  thing  to  note  about  the  procedure  in  the 
courts  before  the  Conquest  is  that  proof  comes  after  judgment. 
This  may  sound  like  a  paradox.  It  may  seem  to  us  that  the 
judgment  must  be  the  outcome  of  the  proof.  By  proof  the 
judges  are  convinced,  and  being  convinced  give  judgment 
according  to  their  conviction.  But  the  old  procedure  does 
not  accord  with  this  to  us  very  natural  notion.  Suppose  two 
persons  are  litigating — A  charges  B  with  having  done  some- 
thing unlawful — we  find  that  the  judgment  takes  this  form, 
that  it  is  for  A  (or  as  the  case  may  be  for  B)  to  prove  his  case. 
The  judgment  decides  who  is  to  prove,  what  proof  he  is  to 
produce — and  what  will  be  the  consequence  of  his  succeeding 
or  failing  to  give  the  requisite  proof.  This  matter  becomes 
clearer  when  we  consider  the  known  means  of  proof.  They 
are  oaths  and  ordeals — and  of  oaths  again  there  are  several 
different  kinds :  there  is  the  simple  unsupported  oath  of  the 
party,  there  is  the  oath  of  the  party  supported  by  compur- 
gators  or  oath-helpers,  and  there  is  the  oath  of  witnesses.  We 
must  look  at  these  modes  of  proof  a  little  more  closely. 

In  some  few  cases  A  having  brought  some  charge  against 
B,  it  will  be  adjudged  that  B  do  prove  his  case  simply  by  his 
own  oath.  This  being  so,  B  has  to  swear  solemnly  that  he 
has  not  done  that  which  is  alleged  against  him.  If  he  can  do 
this  then  the  charge  against  him  fails.  This  may  seem  a  very 
easy  way  of  meeting  an  accusation,  and  such  probably  it  was, 
and  in  but  few  cases  would  so  simple  a  proof  as  this  have  been 
sufficient.  Still  even  in  this  ceremony  it  was  possible  to  fail : 
the  swearer  had  to  use  exactly  the  right  words,  and  a  slip 
would  be  fatal  to  his  cause.  I  have  said  that  we  have  no  text- 
book of  Anglo-Saxon  law.  But  one  of  the  things  that  looks 
most  like  a  text-book  is  a  brief  collection  of  the  oaths  to  be 
sworn  on  different  occasions.  They  are  very  formal  and,  as  it 

8—2 


ii6  Constitutional  History  PERIOD 

seems,  half-poetical.  Probably  the  utmost  accuracy  was 
required  of  the  swearer.  Besides  we  should  remember  that 
an  oath  was  very  sacred.  One  may  hope  that  in  the  course 
of  history  the  respect  for  truth  increases— but  just  for  this 
reason,  as  it  seems  to  me,  the  respect  for  an  oath  as  such 
diminishes.  We  think  that  we  ought  to  tell  the  truth,  that 
this  obligation  is  so  strict  that  no  adjuration,  no  imprecation 
can  make  it  stricter.  To  reverence  an  oath  as  an  oath  is  now 
the  sign  of  a  low  morality.  Not  so  in  old  time: — the  appeal 
to  God  makes  all  the  difference  ;  men  will  not  forswear  them- 
selves though  they  will  freely  lie;  between  mere  lying  and  the 
false  oath  there  is  a  great  gap.  But  generally  a  defendant 
was  not  allowed  to  meet  a  charge  in  a  fashion  quite  so  simple; 
he  was  required  to  swear,  but  to  swear  with  compurgators. 
Now  a  compurgator  or  an  oath-helper  is  a  person  who  comes 
to  support  the  oath  of  another  by  his  own.  For  instance  A 
charges  B  with  a  debt;  it  is  adjudged  that  B  do  go  to  the 
proof  with  twelve  oath-helpers.  This  being  so  then  B  will 
first  swear  in  denial  of  the  charge,  and  then  his  compurgators 
will  swear  that  they  believe  his  oath — '  By  God  the  oath  is 
clean  and  unperjured  that  B  hath  sworn' — they  swear  not 
directly  that  B  does  not  owe  the  money,  they  swear  to  a 
belief  in  his  oath.  Now  this  process  of  compurgation  is  found 
not  only  in  Anglo-Saxon  law,  but  in  all  the  kindred  laws  of 
the  German  and  Scandinavian  nations,  nor  in  these  only,  for 
the  Welsh  laws  about  compurgation  are  particularly  full  and 
particularly  interesting.  Occasionally  we  come  across  a  re- 
quirement that  the  oath-helpers  shall  be  of  kin  to  the  principal 
swearer,  and  this  has  led  to  some  interesting  speculations 
as  to  the  origin  of  this  procedure.  Obviously  if  what  were 
wanted  was  the  testimony  of  impartial  persons  to  the  truthful 
character  of  the  accused,  one  would  not  naturally  seek  this 
from  his  next  of  kin,  who  will  very  naturally  stand  by  their 
kinsman.  In  days  when  the  bond  of  blood-relationship  was 
felt  as  very  strict,  when  men  were  expected  to  espouse  the 
quarrel  and  avenge  the  death  of  their  kinsman,  they  can 
hardly  have  been  thought  the  best  witnesses  to  his  honesty. 
It  has  therefore  been  thought  by  some  (and  if  we  may  refer  to 
the  Welsh  laws  they  will  fully  bear  this  out)  that  compurga- 


I  Oath-Helpers  \  1 7 

tion  takes  us  back  to  a  time  when  the  family  is  an  important 
unit  in  the  legal  system.  Any  charge  which  primarily  affects 
an  individual  is  secondarily  a  charge  against  the  family  to 
which  he  belongs: — that  family  is  bound  to  make  compensa- 
tion for  the  wrongs  that  he  does,  and  even  to  pay  his  debts  if 
he  will  not  pay  them.  But  if  this  theory  be  true — and  I  think 
that  there  is  much  in  its  favour — our  ancestors  had  passed  out 
of  this  primitive  condition  before  they  appear  in  the  light  of 
clear  history:  the  family  was  no  longer  so  important,  the 
state  had  a  direct  hold  oil  the  individual.  It  is  but  rarely 
that  we  hear  of  kinsmen  as  compurgators.  Generally  it  is 
only  required  that  the  swearer  shall  produce  good  and  lawful 
men  to  the  requisite  number.  That  number  varies  from 
case  to  case — sometimes  it  is  as  high  as  48 ;  but  12  is  a  very 
common  number — a  fatally  common  number,  for  it  misleads 
the  unwary  into  seeing  a  jury,  where  in  truth  there  are  but 
compurgators.  But  the  system  is  very  elaborate.  For  instance 
we  find  a  sort  of  tariff  of  oaths — the  oath  of  a  thane  is  worth 
the  oaths  of  six  ceorls,  and  so  forth.  Again  in  cases  of  grave 
suspicion  the  swearer  has  to  repeat  the  oath  over  and  over 
again  with  different  batches  of  compurgators.  In  compara- 
tively recent  times,  the  thirteenth  and  fourteenth  centuries, 
compurgation  still  flourished  in  the  city  of  London,  which  had 
obtained  a  chartered  immunity  from  legal  reforms: — we  read 
how  the  Londoner  may  rebut  a  charge  even  of  murder  by  an 
oath  sworn  with  36  compurgators — how,  in  another  case,  he 
must  swear  nine  times  before  nine  altars  in  nine  churches. 
Then  again  in  the  Anglo-Saxon  days  we  find  that  occasionally 
the  judge  names  a  number  of  men  from  among  whom  the 
defendant  has  to  select  his  compurgators.  This  seems  the 
outcome  of  an  attempt  to  make  the  procedure  more  rational, 
to  obtain  impartial  testimony.  But  normally  the  person 
who  has  to  swear  chooses  his  own  compurgators,  and  if  he 
produces  good  and  lawful  men,  i.e.  free  men  who  have  not 
forfeited  their  credibility  by  crime,  this  is  enough.  Then 
again  the  compurgatory  oath  is  sometimes  made  more  or  less 
difficult  by  the  requirement  or  non-requirement  of  perfect 
verbal  accuracy — sometimes  it  is  sworn  in  verborum  obser- 
iS)  sometimes  not — that  is,  sometimes  a  slip  will  be  fatal, 


Ii8  Constitutional  History  PERIOD 

sometimes  not.  The  oath  with  compurgators,  made  more  or 
less  onerous  in  these  various  ways  according  to  an  elaborate 
system  of  rules,  seems  the  general  proof  of  Anglo-Saxon  law 
— both  in  the  cases  which  we  should  call  civil,  and  in  those 
which  we  should  call  criminal.  The  man  of  unblemished 
reputation  is  in  general  entitled  to  clear  himself  of  a  charge 
in  this  manner :  the  man  who  has  been  repeatedly  accused  or 
who  cannot  find  compurgators  must  go  to  the  ordeal. 

But  the  law  knows  of  other  witnesses  besides  compurgators 
— or  if  we  do  not  choose  to  consider  these  compurgators  as 
witnesses,  then  we  must  say  that  it  knows  of  witnesses  as 
distinguished  from  compurgators.  But  these  witnesses, -like 
compurgators,  do  not  appear  until  after  judgment — they  do 
not  come  to  persuade  the  court  to  give  this  or  that  judgment 
— they  come  there  to  fulfil  the  judgment  already  given  to  the 
effect  that  the  plaintiff,  or  (as  the  case  may  be)  defendant,  do 
prove  his  case  with  witnesses.  It  has  been  adjudged  that 
A  do  prove  his  assertion  by  witnesses:  A  brings  his  witnesses; 
they  do  not  come  to  be  examined ;  they  come  to  swear,  to  swear 
up  to  a  particular  formula,  to  swear  up  to  A's  assertion — this 
is  all  that  is  required  of  them.  They  must  be  good  and 
lawful  men — but  if  they  are  this,  then  B  cannot  object  to 
them,  cannot  question  them ;  if  he  thinks  them  forsworn,  then 
his  remedy,  if  any,  is  against  them — he  must  charge  them 
with  perjury.  Their  evidence  is  not  put  before  the  court  as 
material  for  a  judgment;  judgment  has  been  already  given. 
To  decide  a  dispute  by  weighing  testimony,  by  cross- 
examining  witnesses,  by  setting  evidence  against  evidence  and 
unravelling  facts — this  is  modern ;  the  ancient  mode  is  to  fall 
back  at  once  on  the  supernatural,  to  allow  one  party  or  the 
other  to  appeal  to  Heaven — to  leave  the  rest  to  *  whatever 
gods  there  be/  This  *  formal  one-sided  witness  procedure* 
(that  is  the  best  phrase  that  I  can  find  for  it)  is  not  so  common 
in  Anglo-Saxon  law  as  the  procedure  by  compurgation — but 
there  are  occasions  for  it.  For  instance  many  transactions 
such  as  sales  of  goods  are  required  to  be  completed  in  the 
presence  of  witnesses  and  official  witnesses.  This  is  part  of 
the  police  system.  The  typical  action  of  Anglo-Saxon  law 
seems  the  action  to  recover  stolen  cattle — doubtless,  cattle 


I  Witnesses  119 

lifting  was  an  extremely  common  form  of  wrong-doing — 
and  many  of  the  dooms  are  concerned  with  its  prevention. 
A  man  who  buys  cattle  must  buy  them  in  the  presence  of  the 
official  witnesses  chosen  for  each  hundred  and  borough,  other- 
wise should  he  buy  from  one  who  is  a  thief,  he  is  like  to  find 
himself  treated  as  a  thief.  And  there  are  other  purposes  for 
which  witnesses  may  be  produced  ;  but  it  seems  that  there  is 
no  power  to  compel  a  person  to  come  and  give  evidence  unless 
at  the  time  when  the  event  took  place  he  was  solemnly  called 
to  bear  witness  of  it.  If  something  happens  and  you  think 
that  hereafter  you  may  need  the  testimony  of  the  bystanders, 
you  must  then  and  there  call  upon  them  to  witness  the  fact, 
otherwise  you  will  have  no  power  of  compelling  them  to  come 
to  court  and  prove  your  case.  But  the  matter  on  which 
I  would  chiefly  insist  is  the  one-sided  character  of  procedure, 
because  here  is  the  gulf — the,  as  it  seems,  insurmountable  gulf 
— between  the  Anglo-Saxon  witnesses  and  the  jurors  of  Henry 
the  Second's  reign.  The  witness  is  called  in  by  the  party — 
the  party  to  whom  the  proof  has  been  awarded — to  swear  up 
to  his  case;  the  juror  is  called  in  by  the  sheriff  or  by  the  court 
to  swear  to  the  truth  whatever  the  truth  may  be. 

The  ordeal  was  used  chiefly,  though  not,  I  think,  exclu- 
sively, in  the  case  of  the  graver  charges,  criminal  charges  as 
we  should  call  them.  This  of  course  is  a  direct  and  open 
appeal  to  the  supernatural,  the  case  is  too  hard  for  man,  so  it 
is  left  to  the  judgment  of  God.  There  seems  little  doubt  that 
ordeals  were  used  by  our  forefathers  in  the  days  of  their 
heathenry,  though  unfortunately  almost  all  our  evidence  comes 
from  a  time  when  they  have  become  Christian  ceremonies 
practised  under  the  sanction  of  the  church1.  Four  ordeals 
are  known  to  Anglo-Saxon  law;  the  ordeal  of  hot  iron:  the 
accused  is  required  to  carry  hot  iron  in  his  hand  for  nine  steps, 
his  hand  is  then  sealed  up  and  the  seal  broken  on  the  third 
day,  if  the  hand  has  festered  then  he  is  guilty,  if  not,  innocent; 
the  ordeal  of  hot  water:  the  accused  is  required  to  plunge  his 
hand  into  hot  water,  if  the  ordeal  is  simple,  to  the  wrist,  if 
threefold,  then  to  the  cubit ;  the  ordeal  of  cold  water:  the 
accused  is  thrown  into  water,  if  he  sinks  he  is  innocent,  if  he 
1  Liebcrmann,  Gesetze  der  Angelsachun,  pp.  401—29. 


I2O  Constitutional  History  PERIOD 

floats  he  is  guilty ;  the  ordeal  of  the  morsel:  a  piece  of  bread  or 
of  cheese  an  ounce  in  weight  is  given  to  the  accused,  having 
been  solemnly  adjured  to  stick  in  his  throat  if  he  is  guilty.  I  do 
not  wish  to  dwell  on  these  antiquities,  which  are  sufficiently 
described  in  many  accessible  books1.  Certainly  it  is  very 
difficult  to  understand  how  this  system  worked  in  practice. 

One  form  of  the  ordeal  seems  to  have  been  unused  by  the 
Anglo-Saxons,  namely,  trial  by  battle,  the  judicial  duel.  This 
is  a  very  curious  fact,  for  I  believe  that  in  all  the  kindred 
systems  of  law  the  duel  has  a  place.  Perhaps  we  may 
attribute  this  to  the  action  of  the  church,  for  against  this  form 
of  ordeal  the  church  very  early  set  its  face,  and  in  England 
the  church  was  very  strong,  popular  and  national.  At  any 
rate  this  seems  the  fact — there  is  no  mention  of  trial  by  battle 
in  the  Anglo-Saxon  laws,  and  I  believe  no  evidence  that  any 
such  trial  took  place  in  England  before  the  Norman  Conquest. 
Besides  we  have  an  ordinance,  I  believe,  an  undoubtedly 
genuine  ordinance  of  William  the  Conqueror,  which  treats  the 
duel  as  the  form  of  trial  appropriate  for  Normans.  Now  this 
probably  constituted  the  one  great  difference  between  the 
Norman  and  the  Anglo-Saxon  procedure.  Compurgation 
and  the  other  ordeals  are  common  to  both  systems,  but  in  the 
Norman  many  questions  are  decided  by  battle,  while  the  place 
of  the  duel  in  the  Anglo-Saxon  system  is  filled  partly  by  the 
other  ordeals,  partly  by  those  very  elaborate  forms  of  corn- 
purgation  of  which  I  have  spoken.  I  speak  of  trial  by  battle 
as  an  ordeal,  and  this  it  seems  to  be.  In  theory  it  is  not  an 
appeal  to  brute  force,  but  an  appeal  to  Heaven. 

We  cannot  find  the  germ  of  trial  by  jury  either  in  the 
Anglo-Saxon  procedure,  or  in  the  ordinary  procedure  of  the 
Norman  courts.  Still  the  germ  must  be  found  somewhere, 
and  the  research  of  these  last  days  has  gradually  been  con- 
centrating itself  on  one  particular  point,  the  prerogative 
procedure  of  the  court  of  the  Prankish  kings. 

I  cannot  speak  of  this  matter  with  any  minuteness.  It 
must  suffice  that  the  Franks  had  occupied  provinces  of  the 
Roman  Empire  far  more  thoroughly  Romanized  than  our  own 

1  References  may  be  found  in  what  is  now  the  best  and  most  accessible  of 
these  books,   The  History  of  English  Law,  vol.  II,  p.  596. 


I  Origin  of  the  Jury  121 

country;  that  a  powerful  monarchy  grew  up,  that  the  Prankish 
king  became  Roman  Emperor.  Already  I  have  said  some- 
thing about  the  growth  of  kingship  and  kingly  power  in  this 
country.  Abroad  the  same  process  went  on,  but  much  more 
rapidly,  fostered  by  imperial  Roman  traditions.  The  Prankish 
king  seems  to  have  inherited  many  of  the  powers  of  the 
Roman  government,  and  among  these  many  procedural  pre- 
rogatives ;  the  formal  procedure  of  the  old  Germanic  courts 
did  not  apply  to  him,  he  could  dispense  with  it,  could  for  his 
own  purposes  make  use  of  speedier  and  more  stringent  pro- 
cesses. We  see  something  of  the  same  kind  in  the  England 
of  a  much  later  day.  In  litigation  the  king  enjoys  all  manner 
of  advantages.  What  is  more  we  find  phrases  used  of  the 
Frank  king's  court  which  incline  us  to  say  that  it  was  in  the 
old  English  sense  a  Court  of  Equity,  as  well  as  of  Law — that 
is  to  say,  when  compared  with  the  popular  communal  courts 
it  seems  unhampered,  untrammelled  by  procedural  rules,  it  can 
devise  new  expedients  for  doing  justice,  for  eliciting  the  truth. 
Then  we  find  further  that  these  Prankish  kings  and  emperors 
to  protect  their  own  rights,  the  rights  of  the  crown,  make  use 
of  a  means  of  getting  at  the  truth  not  employed  by  the  older 
courts.  For  instance,  there  being  question  as  to  some  land 
whether  it  be  demesne  of  the  crown  or  no,  an  order  will  be 
given  to  a  public  officer  to  inquire  into  this  by  the  oaths  of  the 
neighbours.  It  seems  that  such  inquisitiones  (for  such  is 
the  term  usually  employed)  were  frequently  ordered  for  the 
ascertainment  of  crown  rights.  The  crown  thus  places  itself 
outside  the  ordinary  formal  procedure ;  for  its  own  purposes 
it  will  make  a  short  cut  to  the  truth1.  Nor  is  this  all :  these 
Prankish  kings  assume  the  power  of  granting  to  others  the 
privileges  which  they  themselves  enjoy — in  particular  in 
granting  to  the  religious  houses  which  they  have  founded,  an 
immunity  from  the  formal  procedure  of  the  ancient  courts: — 
if  the  title  of  the  monastery  to  its  lands  be  called  in  question, 
them  the  matter  is  to  be  tried  by  a  royal  judge;  there  is  to  be 

»•  l  We  are  here  forcibly  reminded  of  our  own  inquests  of  office — the  sheriff  or 
the  escheator  summoning  a  jury  to  testify  whether  someone  has  died  without  an 
heir,  or  has  forfeited  his  land,  in  order  that  the  rights  of  the  crown  may  be  known 
and  the  land  seised  into  the  king's  hand.  F.  W.  M. 


122  Constitutional  History  PERIOD 

no  judicial  combat ;  the  judge  is  to  summon  the  neighbours, 
and  by  their  oath  the  question  is  to  be  decided.  Here  seems 
to  be  just  what  we  want  as  the  germ  of  trial  by  jury.  A 
body  of  neighbours  is  summoned  by  a  public  officer  to  testify 
the  truth,  be  the  truth  what  it  may,  about  facts  and  rights 
presumably  within  their  knowledge.  Lastly,  a  somewhat 
similar  process  is  used  for  the  detection  of  crimes.  Procedure 
by  private  accusation  is  found  insufficient  for  the  peace  of  the 
realm,  and  the  king  finds  himself  strong  enough  to  order  that 
the  men  of  a  district  be  sworn  to  accuse  before  royal  officers, 
those  who  have  been  guilty  of  crime.  These  royal  officers 
(missi  they  are  called)  sent  out  to  receive  such  accusations 
and  to  hold  inquisitions,  remind  us  strongly  of  our  own 
itinerant  justices,  and  indeed  it  seems  very  likely  that  our 
justiciarii  itinerantes  are  in  spirit  the  direct  descendants  of  the 
Frankish  missi. 

It  is  now  very  generally  allowed  that  this  is  the  quarter  in 
which  we  must  look  for  the  first  rudiments  of  trial  by  jury, 
the  prerogative  procedure  of  the  courts  of  the  Frankish  kings 
and  emperors.  But  it  must  at  first  sight  seem  a  very  strange 
thing  that  an  institution,  which  in  its  origin  was  peculiarly 
Frankish,  became  in  course  of  time  distinctively  English.  In 
France  this  inquisition  procedure  perished,  transplanted  to 
England  it  grew  and  flourished,  and  became  that  trial  by  jury 
which  after  long  centuries  Frenchmen  introduced  into  modern 
France  as  a  foreign,  an  English  institution.  How  was  this  ? 

The  Frankish  Empire,  let  us  remember,  went  to  wreck 
and  ruin  and  feudal  anarchy.  But  in  one  corner  of  its  domain 
there  settled  a  race  whose  distinguishing  characteristic  seems 
to  have  been  a  wonderful  power  of  adapting  itself  to  circum- 
stances, of  absorbing  into  its  own  life  the  best  and  strongest 
institutions  of  whatever  race  it  conquered — Frankish,  Italian, 
or  English.  The  Normans  conquered  England;  they  had 
previously  conquered  Normandy:  for  150  years  or  there- 
abouts they  had  been  settled  on  Frankish  territory.  And 
in  their  civilization  they  had  become  Frankish ;  they  had 
thrown  aside  their  heathenry  and  become  Christians ;  they 
had  forgotten  their  Scandinavian  tongue  and  learned  the 
Romance  language  of  those  whom  they  conquered.  The  legal 


I  The  Norman  Inquest  123 

history  of  Normandy  during  those  150  years,  from  912  to 
1066,  is  particularly  obscure,  but  it  seems  sufficiently  proved 
that  the  Norman  dukes  assumed  and  exercised  that  power 
of  ordering  inquisitions  which  had  been  wielded  by  the. 
Prankish  kings,  of  establishing  a  special  procedure  by  way 
of  inquest  for  the  ascertainment  and  protection  of  ducal 
rights,  and  of  the  rights  of  those  to  whom  the  duke  had 
granted  a  special  immunity  from  the  formal  procedure  of 
the  ordinary  courts.  We  find,  for  example,  ducal  charters 
giving  such  privileges  to  religious  houses,  very  similar  to  the 
charters  of  the  Prankish  kings. 

Then  so  soon  as  England  is  conquered  we  find  the  Norman 
dukes,  now  kings  of  England,  ordering  inquisitions  within 
their  new  domains.  One  of  these  is  very  famous,  for  it  is 
the  Doomsday  inquest  The  king  sent  out  barons  who  made 
the  great  survey  on  the  oath  of  the  sheriff,  and  all  the  barons 
and  Norman  landowners  of  the  shire,  and  of  the  priest,  reeve 
and  six  villagers  (villani)  from  every  township.  This  was 
a  fiscal  inquisition  on  a  very  large  scale;  the  prerogative 
procedure  whereby  the  Prankish  kings  had  protected  the 
rights  of  the  crown,  ascertained  the  limits  of  the  royal  domain 
and  so  forth,  was  now  applied  to  the  whole  of  a  conquered 
kingdom.  This  is  a  splendid  and  notorious  instance,  but  it 
does  not  stand  alone,  and  we  find  the  Norman  kings  ordering 
inquisitions  not  merely  to  protect  their  own  rights,  but  also 
to  protect  the  rights  of  those  who  acquired  this  privilege — 
acquired  it  for  the  most  part  for  valuable  consideration,  for 
such  privileges  are  vendible.  Thus  we  have  a  writ  of  the 
Conqueror  himself,  ordering  an  inquisition  in  favour  of  the 
church  of  Ely;  a  number  of  Englishmen  who  knew  the 
state  of  the  lands  in  question  in  the  days  of  Edward  the 
Confessor  are  to  be  chosen  and  are  to  swear  what  they  know1. 
There  are  other  instances  of  such  writs. 

Hitherto,  whether  we  have  looked  at  the  Frank  empire, 
the  Norman  duchy  or  the  English  kingdom,  the  inquisition 
by  the  oath  of  neighbours  has  appeared  as  something  ex- 
ceptional— a  royal  or  ducal  privilege,  no  part  of  the  ordinary 
procedure  of  ordinary  litigation  :  indeed  it  is  rather  a  fiscal  or 

1  JLibet-  Elitnsis,  I,  256. 


124  Constitutional  History  PERIOD 

administrative,  than  a  judicial  institution.  But  in  Normandy 
and  in  England  it  became  a  part  of  the  ordinary  procedure 
open  to  every  litigant  This  no  doubt  was  the  work  of 
Henry  II;  of  this  we  have  ample  evidence,  though  we  have 
not  in  all  cases  the  text  of  the  ordinances  whereby  the  work 
was  accomplished.  Let  us  see  the  various  forms  which  the 
inquisition  or  inquest  now  assumes. 

(1)  In  the  first  place  we  have  the  grand  assize.     When  A 
demands  land  from  B,  B  instead  of  fighting  or  obtaining  a 
champion  to  fight  for  him,  may  put  himself  upon  the  grand 
assize  of  our  lord  the  king.     Four  knights  are  then  chosen 
by  the  parties  and  they  elect  twelve  knights,  who  come  before 
the  king's  justices  to  testify  whether  A  or  B  hath  the  greater 
right  to  this  land.     These  jurors  or  *  recognitors'  you  see  are 
called  in  not  as  judges  of  fact  who  are  to  hear  the  evidence  of 
witnesses,  but  as  witnesses,  and  a  strict  line  between  questions 
of  fact  and  questions  of  law  has  not  yet  been  drawn — they 
speak  as  to  rights,  not  merely  as  to  facts. 

Glanvill  in  a  memorable  passage  brings  out  the  character, 
the  royal  origin,  of  this  new  procedure1.  The  grand  assize, 
he  says,  is  a  royal  boon  by  which  wholesome  provision  has 
been  made  for  the  lives  of  men  and  the  integrity  of  the 
state,  so  that  in  maintaining  their  right  to  the  possession  of 
their  freeholds  the  suitors  may  not  be  exposed  to  the  doubtful 
issue  of  trial  by  battle.  This,  institution  (he  adds)  proceeds 
from  the  highest  equity,  for  the  right  which  after  long  delay 
can  scarcely  be  said  to  be  proved  by  battle,  is  by  the  beneficial 
use  of  this  constitution  more  rapidly  and  more  conveniently 
demonstrated.  We  have  here  then  no  popular  institution 
growing  up  in  the  customary  law  of  our  race,  but  a  royal 
boon,  regale  quoddam  beneficium. 

(2)  Then  again  Henry  institutes  those  possessory  assizes 
which  we  have  more  than  once  mentioned.     A  person  who 
has  been  ejected  from  possession  of  his  freehold,  who  has  been 
'  disseised/  can  obtain  a  writ  directing  the  sheriff  to  summon 
twelve  men  to  testify  before  the  king's  justices  whether  there 
has  been  a  disseisin  or  no.    Here  we  approach  one  step  nearer 

1  De  Legibus  Angliae%  a,  7.    Select  Charters^  p.  161. 


I  The  Assizes  125 

to  the  trial  by  jury  oflater  times  ; — the  question  submitted  to 
these  recognitors  is  more  definitely  a  question  of  fact — has 
there  been  seisin  and  disseisin — not  who  has  the  greater  right; 
but  still  these  recognitors  are  summoned  in  as  witnesses,  as 
neighbours  who  are  likely  to  know  the  facts. 

(3)  By  the  establishment  of  the  grand  assize  and  of  the 
possessory  assizes,  a  great  step  is  made  in  the  history  of  trial 
by  jury.  The  royal  process  of  ascertaining  facts  and  rights 
by  the  sworn  testimony  of  a  body  of  neighbours  is  now  placed 
at  the  disposal  of  ordinary  litigants ;  partly  this  may  be  in 
the  interests  of  justice,  but  also  it  is  in  the  interest  of  a  king 
consolidating  his  realm,  struggling  with  feudalism,  desirous 
of  making  himself  the  one  fountain  of  justice.  But  as  yet 
this  procedure  by  inquisition  or  recognition  has  a  very  de- 
finite scope :  it  is  appropriate  to  certain  actions  and  only  to 
certain  actions,  and  the  form  of  the  recognition  varies  with 
the  form  of  the  action — thus  in  the  grand  assize  four  knights 
elected  by  the  parties  elect  the  twelve  recognitors,  in  the 
possessory  assizes  the  twelve  recognitors  are  directly  sum- 
moned by  the  sheriff.  And  the  question  for  the  recognitors 
is  determined  by  the  form  of  the  action.  Thus  in  the  grand 
assize  it  is  whether  demandant  or  tenant  hath  the  better  right 
to  hold  the  land;  in  the  novel  disseisin,  it  is  whether  the 
defendant  unjustly  and  without  judgment  disseised  the  plaintiff. 
These  assizes  are  the  outcome  of  definite  legislation,  but  the 
procedure  by  recognition,  once  made  common,  spreads  beyond 
the  original  bounds— gradually  and  without  legislation.  We 
find  plaintiffs  and  defendants  in  all  manner  of  actions  pur- 
chasing from  the  king  the  right  to  have  a  recognition  or 
inquest  to  determine  some  disputed  point.  By  slow  degrees 
what  has  been  a  purchasable  favour  becomes  an  ordinary 
right,  and  the  sum  which  the  party  has  to  pay  to  the  king 
becomes  less  and  less  a  variable  price,  more  and  more  a 
definite  tax  or  court  fee  fixed  by  custom.  It  is  a  slow  pro- 
cess by  which  this  recognition  procedure  makes  head  and 
displaces  the  older  methods  of  proof,  the  unilateral  witness, 
procedure  and  compurgation.  There  is  no  one  moment  at 
which  we  can  say  that  it  becomes  law  that  questions  of  fact 
must  go  to  a  jury,  to  a  body  of  sworn  recognitors.  In  certain 


126  Constitutional  History  PERIOD 

forms  of  action,  the  older  processes  maintained  their  footing. 
Thus  even  in  the  present  century,  there  were  certain  actions 
in  which  a  defendant  might  have  recourse  to  compurgation ; 
and  for  this  reason  those  actions  were  never  brought :  means 
had  long  ago  been  discovered  of  bringing  other  actions  in  their 
stead.  However,  the  new  procedure  slowly  became  the  rule, 
and  the  old  procedure  the  exception ;  in  general  disputed 
questions  would  be  settled  by  the  oath  of  the  country,  would 
be  settled  by  trial  by  jury — by  a  jury  (juratd) ;  gradually 
this  word  came  into  use  and  was  contrasted  with  assisa. 
The  word  assisa,  as  already  remarked,  implies  a  positive 
ordinance;  it  is  a  procedure  which,  as  we  should  say,  is 
statutory,  and  you  should  understand  that  the  old  assizes 
might  have  been  used  and  were  occasionally  used  even  in 
the  present  century.  They  were  not  abolished  until  1833, 
but  long  before  that  had  become  uncommon,  their  work 
being  done  for  the  most  part  by  less  cumbrous  and  anti- 
quated machinery.  But  by  the  side  of  the  assizes,  there 
grew  up  the  practice  of  sending  to  a  body  of  recognitors 
questions  of  fact  which  arose  out  of  the  pleadings  in  an 
action;  a  body  of  jurors  thus  called  in  was  a  jury,  jurata, 
as  contrasted  with  an  assize,  assisa.  In  an  assize,  the  very 
first  step  was  to  obtain  a  writ  directing  the  sheriff  to  summon 
twelve  men  to  answer  a  particular  question,  e.g.  whether  A 
disseised  B ;  the  question  for  the  assize  was  formulated  in 
the  original  writ.  Take  another  actiog,  e.g.  an  action  of 
trespass;  the  original  writ  says  nothing  of  any  recognitors, 
nothing  of  any  mode  of  trial;  A  is  summoned  to  answer 
before  the  king's  court  why  he  assaulted  and  beat  B;  then 
A  and  B  plead  before  the  court  until  they  come  to  an 
issue  about  some  question  of  fact  or  question  of  law;  if 
it  be  a  question  of  fact,  then  a  jury  (juratd)  is  summoned 
to  answer  this  question — a  question  which  has  arisen  out  of 
the  pleadings — not  a  question  formulated  in  the  original  writ. 
(4)  In  dealing  with  civil,  before  criminal,  procedure  we 
have  been  following  the  historical  order.  What  we  are  apt 
to  think  the  very  typical  case  of  trial  by  jury,  the  trial  of  a 
man  for  crime  by  a  petty  jury  after  a  grand  jury  has  indicted 
him,  is  the  last  development  of  the  institution  which  has  been 


I  The  Accusing  Jury  127 

under  our  examination.  But  we  have  first  to  speak  of  the 
accusing  jury,  of  what  comes  to  be  the  grand  jury  of  modern 
times.  Here  again,  it  is  an  ordinance  of  Henry  the  Second 
that  establishes  the  procedure  as  normal.  If  any  trace  at  all 
of  a  jury,  or  of  anything  that  is  on  its  way  to  become  a  jury, 
is  to  be  found  in  the  Anglo-Saxon  laws,  it  is  the  trace  of  an 
accusing  jury.  In  one  of  the  laws  of  Ethelred,  we  read  how 
in  a  particular  case  the  twelve  eldest  thanes  are  to  go  out 
and  swear  on  the  relic  that  they  will  accuse  no  innocent  man 
and  conceal  no  guilty  man.  It  is  conceivable  that  this  law 
has  a  general  import,  and  that  by  the  end  of  the  tenth  century 
it  was  part  of  the  procedure  of  the  local  courts  that  a  body  of 
neighbours  should  be  sworn  to  present  the  crimes  which 
had  come  to  their  knowledge.  But  it  is  difficult  for  want  of 
continuous  evidence  to  connect  this  law  with  the  measures  of 
Henry  the  Second,  and  the  meaning  of  Ethelred's  law  is  much 
disputed.  On  the  other  hand,  as  already  said,  the  accusing 
jury  was  an  element  in  the  procedure  of  the  Prankish  courts 
under  the  Carolingian  kings,  and  produced  in  Normandy 
under  the  Norman  dukes.  It  may  be  then  that  Henry  re- 
formed or  revived  an  ancient  English  institution,  but  more 
probably  we  have  here  another  offshoot  of  the  royal  and 
fiscal  inquisition.  To  ascertain  and  protect  the  rights  of  the 
crown  is  the  main  object,  and  it  seems  almost  a  by-end  that 
incidentally  crime  may  thus  be  discovered  and  suppressed. 
The  itinerant  judges  are  supplied  with  lists  of  inquiries 
which  they  are  to  lay  before  juries  representing  the  various 
hundreds  which  they  visit  These  lists  of  inquiries  are  known 
as  articles  of  the  eyre,  capitula  itineris,  and  in  the  main  they 
are  fiscal  inquiries ;  the  royal  revenue  is  the  chief  end  in 
view.  The  jurors  are  to  swear  as  to  what  profits  have  fallen 
to  the  crown,  as  to  escheats,  forfeitures,  marriages,  wardships, 
widows,  Jews,  treasure  trove  and  other  sources  of  income; 
also  as  to  the  misdoings  of  the  sheriff  and  his  bailiffs ;  also 
as  to  murders,  robberies  and  so  forth,  for  crime  also  brings 
money  to  the  royal  exchequer — for  instance  there  are  the 
murder  fines  to  be  collected.  It  is  not  improbable  that  our 
Norman  kings  occasionally  directed  inquisitions  of  this  sort. 
In  Henry  the  Second's  reign,  under  the  Assizes  of  Clarendon 


128  Constitutional  History  PERIOD 

and  Northampton,  the  presentation  of  crimes  by  twelve  men 
representing  each  hundred  was  made  a  regular  permanent  pro- 
cedure. The  twelve  sworn  hundredors  are  to  present  crimes ; 
the  persons  whom  they  accuse  are  to  go  to  the  ordeal ;  if 
they  fail  at  the  ordeal  they  are  to  be  punished  by  mutilation. 
What  is  more,  the  Assize  of  Northampton  betrays  some  mis- 
trust of  the  efficacy  of  the  ordeal  as  a  means  of  eliciting  the 
truth,  for  even  if  a  person  thus  accused  satisfies  the  test,  and 
thus  has  the  judgment  of  God  in  his  favour,  he  is  to  abjure 
the  realm,  that  is,  he  is  to  leave  the  realm  swearing  never  to 
return.  You  observe  that  these  twelve  sworn  hundredors  are 
sworn  accusers ;  their  testimony  is  not  conclusive ;  their  oath 
does  not  lead  to  immediate  condemnation ;  it  leads  to  trial ; 
it  puts  the  accused  on  his  trial ;  he  must  go  to  the  ordeal. 
In  short  they  are  the  ancestors  of  our  grand  jurors,  not  of 
our  petty  jurors,  and  their  sworn  accusation  is  an  indictment 
For  the  rise  of  the  petty  jury  we  must  look  elsewhere.  But 
let  us  pause  to  remark  that  these  measures  of  Henry  the 
Second  institute  a  new  mode  of  procedure  in  criminal  cases, 
they  put  the  indictment  by  the  side  of  the  appeal.  Thence- 
forward English  law  has  two  criminal  procedures;  there  is  the 
appeal — a  private  accusation  brought  by  the  person  primarily 
wronged  by  the  crime,  the  person,  e.g.,  whose  goods  have  been 
stolen,  or  the  nearest  kinsman  of  the  murdered  man ;  then 
there  is  the  indictment — the  sworn  accusation  of  twelve  men 
who  have  sworn  to  present  the  crimes  committed  within  their 
hundred.  These  two  modes  of  procedure  live  side  by  side 
until  modern  times ;  the  appeal  of  felony  was  not  abolished 
until  1819;  the  indictment  we  still  have,  though  in  course  of 
time  its  real  nature  has  undergone  a  great  change. 

(5)  And  now  as  to  the  petty  jury  or  trying  jury  in 
criminal  cases.  We  cannot  trace  this  back  to  any  positive 
ordinance ;  it  makes  its  way  into  our  procedure  almost 
insensibly  and  that  too  at  a  comparatively  recent  time — by 
which  I  mean  that  the  system  of  assizes  and  juries  in  civil 
cases  was  in  full  swing  before  it  became  common  that  persons 
accused  of  crimes  should  be  tried  by  the  oath  of  their  neigh- 
bours. From  the  Norman  Conquest  onward  the  regular 
means  of  bringing  a  criminal  to  justice  was  the  appeal,  or 


I  Appeal  and  Indictment  129 

private  accusation,  and  this  led  to  trial  by  battle.  Gradually, 
however,  in  the  reigns  of  Henry  II  and  his  sons,  we  find  that 
appellees  can  purchase  from  the  king  the  privilege  of  having 
questions  tried  by  an  inquest  of  neighbours.  At  first  the 
questions  thus  tried  seem  merely  to  be  incidental  questions 
arising  out  of  the  pleadings,  as  for  instance,  whether  the 
appellee  is  a  maimed  man  who  need  not  fight,  or  is  above 
the  fighting  age.  The  questions  thus  tried  become  in  course 
of  time  more  substantial  and  touch  the  real  issue  of  guilt^or 
innocence :  thus  the  appellee  sets  up  an  alibi  and  obtains  an 
inquest  to  prove  this  ;  or  again  he  asserts  that  the  appellor  is 
moved  to  the  appeal  by  no  honest  motive,  but  by  spite  and 
hatred,  and  obtains  an  inquest  to  prove  that  this  is  no  true 
appeal  but  is  the  outcome  of  odium  et  atya.  Lastly,  we  find 
the  appellee  putting  himself  on  an  inquest  for  the  whole 
question  of  guilt  and  innocence — -ponit  se  super  patriam  et  de 
bono  et  de  malo — he  puts  himself  on  his  country,  i.e.  on  his 
neighbourhood  for  good  and  for  ill.  An  article  of  the  Great 
Charter  (the  meaning  of  which  has  been  contested)  seems  to 
provide  that  thenceforward  an  appellee  is  to  have  a  right  to 
put  himself  upon  an  inquest  without  having  to  purchase  this 
as  a  privilege  from  the  king1.  By  the  time  when  Bracton 
wrote  (circ.  1250)  it  seems  to  be  law  that  an  appellee  has  two 
alternatives  open  to  him  ;  he  can  defend  himself  by  battle  or 
he  can  put  himself  upon  his  country,  occasionally  (as  e.g.  if 
the  appellor  be  beyond  the  fighting  age)  the  appellee  must 
be  forced  to  put  himself  upon  his  country. 

Thus  much  as  to  trial  by  jury  in  the  case  of  an  appeal ; 
but  as  already  said  Henry  II  established  by  the  Assizes 
of  Clarendon  and  Northampton  another  criminal  procedure, 
namely  the  indictment.  Now  under  these  ordinances  the 
person  indicted  went  to  the  ordeal,  but  as  already  noted 
some  distrust  of  the  ordeal  was  already  shown,  for  even  if 
there  was  supernatural  testimony  in  favour  of  innocence  still 
the  accused,  si  fuerit  de  pessimo  testimonio  et  publice  dif- 
famatus,  had  to  abjure  the  realm.  Half  a  century  later  the 
ordeal  went  out  of  use.  The  Fourth  Lateran  Council,  held  in 

1  M.  C.  c.  36.    McKechnie,  pp.  417 — 27. 
M.  Q 


130  Constitutional  History  PERIOD 

1215,  prohibited  the  clergy  from  taking  part  in  the  ordeal, 
and  thus  in  effect  abolished  it,  for  the  ordeal  was  nothing 
if  not  a  religious  ceremony.  We  find  the  council  of  an 
English  king  (Henry  the  Third  had  just  become  king  and 
was  yet  a  boy)  at  once  accepting  the  abolition  as  an  accom- 
plished fact  and  making  provision  for  the  new  state  of  affairs. 
It  seems  to  become  law  that  a  person  indicted  by  the  twelve 
hundredors  must  submit  to  be  tried  by  an  inquest  of  neighbours 
or  else  must  remain  in  gaol.  I  think  that  during  the  first  half 
of  the  thirteenth  century  some  at  least  of  the  king's  judges 
held  that,  even  if  the  accused  would  not  voluntarily  put  himself 
upon  the  oath  of  his  neighbours,  nevertheless  he  could  be  tried, 
an  inquest  could  be  sworn,  and,  if  it  made  against  him,  he  could 
be  sentenced  and  punished.  It  seems  to  me  that  this  was 
Bracton's  opinion,  but  that  he  did  not  care  to  express  himself 
very  plainly.  Doubtless  there  was  a  very  strong  feeling  that 
to  try  a  man  by  a  jury,  when  he  had  not  submitted  to  be  so 
tried,  was  thoroughly  unjust.  We  moderns,  especially  if  we 
come  to  the  subject  with  the  too  common  belief  that  trial  by 
jury  is  a  process  of  popular  customary  origin  of  immemorial 
antiquity,  the  birthright  of  Englishmen  and  so  forth,  must 
find  it  hard  to  realize  this  sentiment,  but,  if  we  fail  to  do  this,  an 
important  tract  of  legal  history  will  be  for  us  a  stupid  blank. 
The  mere  oaths  of  twelve  sworn  witnesses  (remember  that 
the  jurors  of  the  thirteenth  century  are  witnesses)  are  not 
enough  to  fix  a  man  with  guilt,  unless  indeed  he  has  voluntarily 
submitted  his  fate  to  this  test;  he  ought  to  be  allowed  to 
demonstrate  his  innocence  by  supernatural  means,  by  some 
such  process  as  the  ordeal  or  the  Judicial  combat ;  God  may 
be  for  him,  though  his  neighbours  be  against  him.  It  is 
interesting  to  find  that  this  notion  was  not  confined  to 
England ;  Brunner  has  shown  that  it  crops  up  in  Normandy 
and  in  other  parts  of  France — a  man  is  not  to  be  condemned 
on  the  evidence  of  his  neighbours  unless  he  has  put  himself 
upon  their  oath1.  I  think,  as  already  said,  that  some  of  the 
judges  of  Henry  Ill's  reign  had  risen  above  this  notion  and 
sent  to  trial  by  jury  men  who  distinctly  and  emphatically 

1  Brunner,  Schwurgetuht^  pp.  469 — 77. 


I  Extension  of  the  Jury  System        131 

refused  trial ;  but  before  the  end  of  the  century  it  had  become 
established  that  the  indicted  person  could  not  be  sent  to 
trial  unless  he  put  himself  upon  his  country.  He  could  not 
be  tried,  but  he  could  be  tortured  into  saying  the  requisite 
words ;  superstitions  look  odd  when  they  have  ceased  to  be 
our  own  superstitions :  it  became  law  that  an  indicted  person 
who,  when  asked  how  he  would  be  tried,  stood  mute  of  malice, 
that  is,  refused  to  answer  'By  God  and  my  country/  might  be 
pressed  and  starved  to  death.  I  need  not  give  the  details  of 
this,  the  peine  forte  et  dure,  but  one  should  think  of  it  whenever 
one  hears  talk  of  trial  by  jury  as  of  an  obviously  just  institution. 
Our  ancestors  did  not  think  so. 

At  the  end  of  Edward  Fs  reign,  the  moment  at  which  we 
have  placed  ourselves,  the  situation  therefore  is  this.  In  all 
civil  actions,  trial  by  jury — i.e.  by  a  body  of  neighbour  witnesses 
— has  become  the  usual  mode  of  trial,  though  still  in  certain 
cases,  not  very  common,  the  defendant  can  have  recourse  to 
compurgation  or  to  trial  by  battle.  As  to  criminal  cases — 
a  person  appealed  may  if  he  pleases  put  himself  upon  a  jury 
instead  of  fighting;  jurors  also  are  sworn  in  to  indict  criminals, 
the  person  thus  indicted  must  consent  to  be  tried  by  another 
jury  ;  if  he  will  not  consent,  he  is  pressed  or  starved  to  death. 
All  jurors,  however,  are  as  yet  witnesses,  or  sworn  accusers; 
the  process  which  turns  them  into  judges  of  fact,  judges  of 
fact  testified  by  others,  by  witnesses  produced  and  examined 
in  their  presence,  has  hardly  yet  begun.  The  fact  that  jurors 
are  regarded  as  witnesses  is  brought  out  by  this;  in  many 
cases,  and  their  number  is  increasing,  the  person  against  whom 
the  jurors  have  given  a  verdict  may  take  proceedings  against 
the  jurors  for  perjury  :  these  proceedings  are  called  an  attaint; 
the  verdict  of  the  twelve  jurors  is  brought  before  a  jury  of 
twenty-four,  and  if  these  twenty-four  find  that  the  verdict  was 
false,  it  is  set  aside  and  the  twelve  perjured  jurors  are  heavily 
punished.  Also  we  may  remark  that  as  yet  it  is  hardly  well 
established  that  the  jurors  must  give  an  unanimous  verdict ; 
in  old  times  the  verdict  of  a  majority  has  been  accepted. 

We  have  now  taken  account  of  the  doctrines  whereby  the 
royal  jurisdiction  had  extended  itself,  and  of  the  new  institution, 
regale  beneficium,  which  had  made  royal  justice  preferable  to 

9—2 


132  Constitutional  History  PERIOD 

all  other  justice.     We  may  now  look  at  the  courts  as  they 
stand  in  Edward's  reign. 

(a)  The  old  local  courts  still  exist;  as  a  political  assembly 
the  county  court  is  still  of  first-rate  importance,  it  is  this  that 
is  represented  in  parliament  by  the  knights  of  the  shire ;  but 
as  a  court  of  law  it  has  lost  much  of  its  importance.  Almost 
all  civil  causes  of  any  great  importance  can  now  be  begun  in 
the  king's  court,  where  there  can  be  trial  by  jury.  Nor  is  this 
all ;  a  statute  has  lately  been  passed,  the  Statute  of  Gloucester 
(1278),  which  has  been  construed  to  mean  that  no  action  for 
more  than  40  shillings  can  be  brought  in  these  local  courts1. 
The  statute  does  not  say  this;  what  it  says  is  very  different, 
viz.  that  no  action  for  less  than  40  shillings  is  to  be  brought 
before  the  king's  justice — apparently  it  was  felt  that  the 
centralization  of  justice  had  already  gone  too  far;  it  was 
a  hardship  for  men  to  be  brought  to  Westminster  for  less 
than  40  shillings.  However,  the  king's  justices  seem  to  have 
at  once  construed  this  to  imply  that  suits  for  more  than 
40  shillings  were  not  to  be  brought  in  the  local  courts.  Thus 
the  competence  of  those  courts  was  now  restricted  by  a  bar- 
rier, which  grew  narrower  and  narrower  as  the  value  of  40 
shillings  became  less  and  less.  As  to  criminal  proceedings 
the  county  court  had  lost  its  jurisdiction.  The  first  steps  in 
appeals  of  felony  were  taken  in  the  local  courts,  but  those 
courts  could  try  no  cases  in  which  there  was  talk  of  a  breach 
of  the  king's  peace.  Presentments  also  and  indictments  were 
taken  in  the  local  courts;  but  they  could  not  try  the  indicted. 
Quite  petty  offences  could  be  punished  however  by  pecuniary 
amercements  in  the  hundred  court  and  the  courts  leet,  that 
is,  hundred  courts  which  had  fallen  into  private  hands;  but 
even  in  these  cases  the  penal  jurisdiction  was  now  deemed  to 
emanate  from  the  king,  and  was  exercised  by  his  sheriff  or  by 
some  lord  claiming  under  royal  grant.  The  private  penal 
jurisdictions  Edward  had  tried  to  suppress  by  demanding 
that  all  those  who  claimed  them  should  prove  a  title  derived 
from  the  crown — they  seldom  extended  beyond  the  hanging 
of  a  thief  caught  in  the  act  with  the  stolen  goods  upon  him. 

1  See,  for  a  fuller  account  of  the  decline  of  manorial  jurisdiction,  Maitland, 
Select  Pleas  of  Manorial  Courts  (Seiden  Society),  Introduction. 


I  End  of  the  Justiciar  133 

(ft)  The  manorial  courts  as  regards  freehold  had  perhaps 
not  lost  much  in  theory — it  was  still  the  rule  that  a  proprietary 
action  for  land  freehold  of  the  manor  should  be  begun  in  the 
manor  court,  but  this  rule,  though  sanctioned  by  Magna  Carta, 
was  easily  and  successfully  evaded.  My  impression  is  that 
before  the  end  of  the  thirteenth  century  it  was  a  very  rare 
thing  for  an  action  concerning  freehold  to  be  begun,  tried,  and 
ended  in  a  manor  court  But  the  king's  courts  had  not  yet 
undertaken  to  protect  the  tenant  in  villeinage  against  his  lord 
or  to  regard  him  as  having  any  right  in  his  land.  Disputes 
as  to  lands  holden  by  villein  services  were  still  heard  and 
determined  by  the  customary  court  of  the  manor,  and  in  such 
courts  alienations  were  effected,  the  old  tenant  surrendering  the 
land  to  the  lore}  who  admitted  the  new  tenant 

(c)  The  king's  court,  as  we  have  seen,  has  by  Edward's 
time  split  itself  up  into  three  different  courts  of  law,  the  King's 
Bench,  the  Court  of  Common  Pleas  and  the  Exchequer.  The 
stages  in  this  process  can  be  dated,  but  we  must  not  go  into 
details.  The  last  stage  is  reached  when  the  office  of  chief 
justiciar  was  extinguished.  This  we  may  say  happens  at  the 
end  of  Henry  Ill's  reign.  In  1232  Henry  dismissed  Hubert 
de  Burgh,  who  is  the  last  chief  justiciar  in  the  sense  of  being 
the  king's  first  minister  and  lieutenant-general.  Henry  was 
then  under  the  influence  of  the  foreign  party,  and  he  appointed 
one  Stephen  Segrave  to  the  justiciarship:  but  two  years  after- 
wards the  barons  revolted  against  the  foreigners  and  Segrave 
was  dismissed.  Henry  then  tried  for  many  years  to  rule  with- 
out a  justiciar,  without  ministers.  For  a  short  time  near  the 
end  of  the  reign  there  was  again  a  justiciar,  but  in  1268,  shortly 
before  Henry's  death,  the  office  became  empty  and  was  never 
again  filled  up.  Thenceforth  each  of  the  three  courts  had  its 
chief  justice — there  was  the  chief  justice  of  the  King's  Bench, 
the  chief  justice  of  the  Common  Pleas,  the  chief  Baron  of 
the  Exchequer.  The  extinction  of  the  chief  justiciarship  is 
important  in  many  ways.  It  marks  a  stage  in  the  separation 
of  judicial  from  governmental  functions:  the  head  of  the 
court  of  justice  is  no  longer  the  prime  minister.  This  leads 
to  the  rise  of  the  chancellor;  Edward's  first  minister,  probably 
the  chief  adviser  in  his  legislative  scheme,  is  his  chancellor. 


134  Constitutional  History  PERIOD 

Burnell.  But  from  this  time  forward  we  may  say  there  is  a 
body  of  judges  who  are  expected  to  be  non-political,  who  are 
to  hold  the  balance  of  justice  evenly  not  merely  between 
subject  and  subject,  but  also  when  the  king  himself  is  con- 
cerned. Still  we  must  not,  for  a  long  time  yet,  think  of  the 
judges  as  enjoying  any  great  degree  of  independence ;  they 
are  still  the  king's  servants;  they  hold  their  offices  for  centuries 
to  come  during  the  king's  good  pleasure,  and  occasions  on 
which  the  royal  will  is  allowed  to  interfere  with  the  course  of 
royal  justice  are  but  too  frequent.  Of  each  of  these  courts 
a  word : — 

(i)  The  King's  Bench  is  theoretically  a  court  held  before 
the  king  himself,  and  for  a  long  time  yet,  its  justices  journey 
about  with  the  king.  It  is  very  clear  that  both  John  and 
Henry  III  did  justice  in  person.  The  theory  of  the  time  saw 
no  harm  in  this.  Bracton  explains  that  all  justice  flows  from 
the  king ;  it  is  merely  because  he  has  not  strength  enough  and 
time  enough  that  he  delegates  some  of  his  powers  to  justices. 
It  was  but  gradually  that  the  king  abandoned  the  practice 
of  sitting  in  court ;  but  in  the  fourteenth  century  it  had, 
I  think,  become  uncommon  for  him  to  do  so.  Still  to  the  very 
end  of  its  career  in  1875  the  King's  Bench  was  theoretically  a 
court  held  coram  ipso  domino  Rege\  any  suitor  ordered  to 
come  before  it,  was  bidden  to  appear  coram  nobis  ubtcunque 
fuerimus  in  Anglia.  As  to  its  functions : — it  was  in  the  first 
place  the  central  court  for  pleas  of  the  crown.  Criminal  cases 
had  to  be  begun  in  the  counties  in  which  the  crime  was  com- 
mitted, before  those  itinerant  justices  of  whom  hereafter;  but 
the  King's  Bench  had  criminal  jurisdiction  as  a  court  of  first 
instance  over  the  county  in  which  it  sat.  But  further  it  had  a 
general  superintendence  over  criminal  justice ;  it  could  order 
that  any  criminal  case  should  be  removed  from  the  courts  of 
the  itinerant  judges  and  brought  before  it.  Secondly,  it  had  a 
large  power  of  superintendence  over  all  royal  officers,  sheriffs, 
and  the  like — would  entertain  complaints  against  them  and 
bid  them  do  their  duties.  Thirdly,  it  had  a  large  civil  juris- 
diction; it  could  entertain  any  civil  action  in  which  the 
defendant  was  charged  with  a  breach  of  the  king's  peace — 
and  as  I  have  already  said,  this  idea  of  the  king's  peace 


I  Common  Pleas  and  Exchequer        135 

had  been  so  enormously  extended  that  any  unlawful  use  of 
force,  however  small,  could  be  regarded  as  a  breach  of  the 
king's  peace  and  could  be  brought  before  the  King's  Bench. 
Not  content  with  this  it  proceeded  by  means  of  fictions  to 
steal  business  from  the  Common  Pleas.  A  great  deal  of  our 
legal  history  is  to  be  explained  by  the  fact  that  for  centuries 
the  judges  were  paid  by  fees ;  more  business  therefore  meant 
more  money,  and  they  had  a  keen  interest  in  attracting  cases 
to  their  courts. 

(ii)  The  Court  of  Common  Pleas  was  the  central  court 
for  all  cases  between  subject  and  subject.  The  charter  provided 
that  such  cases  should  not  follow  the  king,  but  should  be  heard 
in  some  certain  place;  as  a  matter  of  fact,  this  court  was  seldom 
removed  from  Westminster.  It  had  a  concurrent  jurisdiction 
with  the  King's  Bench  in  actions  of  trespass  in  which  mention 
was  made  of  the  king's  peace,  while  all  other  civil  cases 
belonged  of  right  to  it.  In  course  of  time,  however,  both  the 
King's  Bench  and  the  Exchequer  contrived  to  rob  it  of  a 
great  deal  of  work. 

(iii)  The  Exchequer  of  Edward's  reign  was  as  yet  a  some- 
what ambiguous  institution — both  a  court  of  law  and  an 
administrative  bureau.  In  its  former  capacity  it  heard  suits 
relating  to  the  royal  revenue.  In  its  latter  it  collected  the 
revenue  and  paid  it  out  Gradually  these  functions  were 
separated.  The  fiscal  work,  the  receipt  and  collection  of 
revenue,  was  under  the  control  of  the  lord  treasurer,  assisted 
by  the  chancellor  of  the  exchequer,  while  a  chief  baron  and 
three  or  four  other  barons  heard  and  determined  the  litigious 
proceedings,  and  in  course  of  time  stole  a  great  deal  of  work 
from  the  court  of  common  pleas.  The  separation  in  this 
financial  department  of  the  administrative  from  the  judicial 
work  took,  however,  a  long  time : — the  modern  treasury  is  an 
offshoot  of  the  ancient  exchequer,  and  down  to  1875  the 
chancellor  of  the  exchequer  was  entitled  to  sit  as  a  judge 
along  with  the  barons,  and  just  for  form's  sake  a  newly 
appointed  chancellor  of  the  exchequer  used  to  sit  there  and 
hear  a  case  or  two.  The  barons  of  the  exchequer  of  Edward's 
day,  and  even  of  a  much  later  time,  were  not  as  a  rule 
professional  lawyers. 


136  Constitutional  History  PERIOD 

Such  were  what  came  to  be  known  as  the  three  superior 
courts  of  common  law: — this  phrase  'of  common  law'  has  not 
as  yet  acquired  one  part  of  the  meaning  which  it  had  in  later 
times:  for  the  present  we  hear  nothing  of  any  court  of 'equity/ 

The  evolution  of  these  definitely  judicial  bodies  did  not, 
however,  exhaust  the  fount  of  royal  justice.  If  all  other 
courts  failed  the  king  might  still  do  justice  in  his  council  or 
in  his  parliament.  The  king's  court  of  the  Norman  reigns 
had  been,  we  have  seen,  in  theory  a  court  of  prelates  and 
barons ;  it  is  not  until  we  have  come  to  the  days  of  Henry  II 
that  we  find  a  smaller  group  of  professional  judges  doing  the 
ordinary  and  rapidly  increasing  work  of  the  curia  Regis.  We 
have  seen  also  that  during  the  thirteenth  century  there  grows 
up  a  contrast  between  the  king's  permanent  council  (concilium 
Regis)  and  the  great  council  of  the  nation  (commune  concilium 
regni\  In  either  of  these  assemblies  the  king  can  do  justice, 
and  during  the  reign  of  Edward  I  the  machinery  of  govern- 
ment works  so  easily,  and  there  is  (except  at  the  one  great 
crisis  of  1297)  so  little  opposition  to  the  king,  that  men  are  not 
very  careful  to  distinguish  between  these  two  bodies.  We 
have  noticed  this  as  regards  legislation  ;  the  contrast  between 
statute  and  ordinance  is  not  emphasized ;  of  some  of  Edward's 
laws  it  is  hard  to  say  whether  they  proceed  from  the  king  in 
parliament  or  from  the  king  in  council.  So  with  judicature; 
the  errors  of  all  inferior  courts  may  be  brought  in  the  last 
resort  for  correction  before  the  king  in  parliament  or  before  the 
king  in  council.  Looking  a  little  forward  we  see  that  this  work, 
the  work  of  an  ultimate  court  of  error,  becomes  definitely  the 
work  of  parliament,  but  is  transacted  only  by  that  part  of  the 
parliament  which  is  of  ancient  date.  The  representatives  of 
the  commons,  though  they  make  good  their  claim  to  share  in 
all  legislation,  never  take  part  in  this  judicial  work.  Thus 
the  House  of  Lords,  the  assembly  of  prelates  and  barons, 
becomes  the  ultimate  court  of  error — still  in  name  and  theory 
the  jurisdiction  is  that  of  the  king  in  parliament  On  the  other 
hand  jurisdiction  is  also  claimed  for  the  king  in  council — 
a  long  and  stormy  history  lies  before  this  claim,  the  history 
of  the  Star  Chamber,  the  history  of  the  Court  of  Chancery ; 
but  for  the  present  under  Edward's  just  and  steady  rule  all 


1  Judicial  Circuits  137 

works  well— there  is  no  great  need  to  distinguish  between  the 
permanent  group  of  advisers  and  the  occasional  assembly  t>f 
prelates  and  magnates — the  one  may  be  treated  as  a  standing 
committee  of  the  other. 

(d)  It  remains  to  speak  of  the  visitatorial  courts : — 
From  an  early  time  a  great  deal  of  the  work  of  royal 
justice  is  done  not  by  the  central  tribunal  but  by  itinerant 
justices,  sent  out  by  royal  commission  to  hear  cases  in  the 
various  counties.  We  hear  of  such  judges  in  the  reign  of 
Henry  I;  their  visitations  become  normal  and  systematic 
under  the  rule  of  Henry  II.  The  king  commissions  justices 
to  transact  this  and  that  judicial  business  in  the  various 
counties  of  England.  These  commissions  take  various  forms 
more  or  less  comprehensive.  First,  justices  may  be  sent  out 
ad  omnia  placita,  that  is,  to  entertain  all  manner  of  pleas 
belonging  to  the  county  in  question.  Justices  acting  under 
this  comprehensive  commission  are  known  pre-eminently  as 
justices  in  eyre — their  journey  is  an  iter  or  eyre.  When  such 
a  commission  is  issued,  then  all  the  business  belonging  to  the 
county  in  question  which  is  pending  in  the  king's  court  is 
adjourned  out  of  that  court  into  the  eyre — so  that  if  the 
parties  to  a  suit  would  otherwise  have  been  bound  to  appear 
before  the  Bench  at  Westminster  and  take  some  step  in  the 
action,  they  will  now  be  bound  to  appear  before  the  justices 
in  eyre.  Further,  these  justices  are  armed  with  lists  of  inquiries 
which  they  are  to  lay  before  jurors  representing  the  various 
hundreds  of  the  county  and  to  which  such  jurors  must  return 
answer  on  oath.  Such  capitula  itineris,  articles  of  the  eyre, 
relate  chiefly  to  crimes  and  to  royal  rights — the  criminal  and 
financial  inquiries  seem  curiously  mixed  up  together — for  in 
truth  crimes  are  pleas  of  the  crown,  and  a  source  of  royal 
revenue.  So  the  justices  in  eyre  inquire  of  murders,  robberies 
and  other  felonies,  also  of  escheats,  wardships,  marriages  and 
the  like,  also  (and  this  must  have  been  important  business) 
of  the  illegal  profits  of  sheriffs  and  other  royal  officers.  The 
whole  of  the  county  is  summoned  to  meet  the  justices.  In 
fact  the  justices  hold  a  very  solemn  meeting  of  the  county 
court  and  do  royal  justice  therein.  Now  eyres  of  this  kind  were 
made  throughout  the  thirteenth  century.  It  is  said  that  they 


138  Constitutional  History  PERIOD 

were  usually  made  once  in  every  seven  years ;  but  certainly 
this  period  was  not  strictly  observed ;  the  king  could  order  an 
eyre  when  and  where  he  pleased.  An  eyre  seems  to  have 
been  regarded  as  a  sore  burden  on  the  county,  the  attendance 
of  all  freeholders  was  required,  and  the  justices  exercised  large 
powers  of  fining  and  amercing  the  county,  hundreds,  townships 
and  individuals  for  neglect  of  police  duties,  small  infringements 
of  royal  rights  and  other  minor  misdoings.  Complaints  of 
the  frequency  of  these  eyres  were  often  made.  They  seem 
to  have  gone  out  of  use  in  the  time  of  Edward  III.  As 
machinery  for  collecting  revenue  they  were  becoming  un- 
necessary :  the  king  was  beginning  to  depend  more  and 
more  on  taxes  granted  by  parliament,  less  and  less  on  the 
profits  of  jurisdiction  and  the  income  derived  from  his  feudal 
rights,  escheats,  wardships  and  so  forth.  Justice  could  be 
done  in  the  counties  under  less  comprehensive  commissions, 
commissions  of  a  purely  judicial  kind. 

By  this  time,  besides  the  commission  for  a  general  eyre 
there  were  three  other  commissions  in  use — commissions 
which  are  still  in  use  at  the  present  day.  Of  these  a  few 
words  must  be  said. 

(i)  The  Commission  of  Assize.  We  have  seen  that 
Henry  II  instituted  certain  actions  for  the  protection  of 
possession,  the  three  possessory  assizes  of  Novel  Disseisin, 
Mort  D'ancestor  and  Darrein  Presentment.  Justices  were  sent 
out  to  take  these  assizes,  that  is,  to  hear  and  determine  these 
possessory  actions.  Evidently  circuits  under  such  a  com- 
mission, unlike  the  general  eyres,  were  popular.  John  was 
obliged  to  promise  in  the  charter  of  1215  that  justices  for  this 
purpose  should  be  sent  four  times  a  year — in  the  charter  of 
1217  this  was  changed  to  once  a  year.  This  promise  seems 
to  have  been  fairly  well  kept.  At  first  it  was  the  practice  to 
commission  as  justices  some  four  knights  of  the  shire ;  but 
gradually  during  Henry  II Fs  reign  this  work  falls  more 
and  more  into  the  hands  of  the  professional  judges  of  the 
royal  court.  It  becomes  the  practice  to  commission  one  of 
them  and  such  knights  of  the  county  as  he  shall  associate 
with  himself.  The  opinion  gains  ground  that  such  work  can- 
not properly  be  left  to  amateurs,  and  divers  statutes  from  the 


I  Nisi  Priiis 

end  of  the  thirteenth  and  from  the  fourteenth  century  provide 
that  one  of  the  justices  hearing  the  assize  must  be  a  judge  of 
the  King's  Bench  or  Common  Pleas  or  a  serjeant  at  law. 

Then  in  1285  the  Statute  of  Westminster  II  threw  a  great 
deal  of  new  work  upon  these  justices  of  assize.  By  this  time 
trial  by  jury  had  become  the  common  mode  of  trying  actions 
other  than  the  assizes.  When  an  action  in  one  of  the  courts  at 
Westminster  was  ready  for  trial,  when,  that  is,  the  parties  by 
their  pleadings  had  raised  some  issue  of  fact,  it  had  been  the 
practice  to  summon  to  Westminster  a  jury  from  the  county  to 
which  the  case  belonged — thus  if  it  was  a  Cornish  case  the 
sheriff  of  Cornwall  would  be  directed  to  send  jurors  from 
Cornwall.  It  is  to  me  very  surprising  that  Englishmen  should 
so  long  have  borne  this  heavy  burden.  But  so  it  was;  we  still 
may  read  on  the  contemporary  rolls  how  jurors  from  the  re- 
motest corners  of  England  journeyed  up  to  Westminster  to  give 
their  verdicts.  But  in  1 285  it  was  ordained  that  the  trial  of  such 
actions  should,  at  least  as  a  general  rule,  take  place  before 
the  justices  of  assize.  The  court  then  in  which  the  action  was 
depending,  instead  of  bidding  the  sheriff  send  Cornishmen  to 
Westminster,  would  tell  him  to  have  the  jurors  at  Westminster 
on  a  certain  day,  unless  before  that  day  (nisi  prius)  justices  of 
assize  should  come  into  Cornwall.  The  same  statute  (West.  II, 
13  Edw.  I,  c.  30)  directed  that  assizes  should  be  taken  thrice  a 
year,  but  at  some  time  or  another  it  became  the  practice  to 
send  them  only  twice  a  year — only  once  a  year  into  the  four 
northern  counties.  As  a  matter  of  course,  then,  the  justices  of 
assize  would  come  round  before  the  day  named  in  the  writ,  and 
then  the  case  would  be  tried  at  nisi  prius.  Now  it  is  well  to 
understand  that  though  as  a  matter  of  fact  the  justice  of  assize 
sitting  to  try  a  case  at  nisi  prius  was  usually  one  of  the  judges 
of  one  of  the  three  courts  of  common  law,  he  sat  there  not 
as  such  a  judge  but  merely  as  a  royal  commissioner  sent  out 
for  this  one  occasion  to  take  the  assizes  of  a  particular  county. 
For  instance  the  queen  (I  am  speaking  of  what  happened 
twelve  years  ago)  might  commission  a  judge  of  the  Common 
Pleas  to  take  the  Cambridgeshire  assizes1.  He  would  come 

1  i.e.  before  the  Judicature  Act  of  1875  which  amalgamated  the  three  courts. 


140  Constitutional  History  PERIOD 

to  Cambridge,  and  under  the  Statute  of  Westminster  he 
would  try  with  a  jury  all  the  Cambridgeshire  actions  which 
were  ready  for  trial,  no  matter  in  which  of  the  three  courts 
they  were  depending.  The  court  he  held  would  not  be  the 
court  of  Common  Pleas  nor  the  King's  Bench  nor  the  Ex- 
chequer. He  would  be  sitting  as  a  royal  commissioner, 
empowered  to  try  these  cases.  His  one  business  would  be  to 
preside  at  the  trial.  In  general,  though  to  this  there  were 
some  statutory  exceptions,  he  could  not  give  judgment  The 
action  was  an  action  pending  in  one  of  the  central  courts, 
the  Westminster  courts,  and  it  was  for  that  court  to  give 
judgment. 

(2)  The  Commission  of  Gaol  Delivery.    Even  while  eyres 
ad  ontnia  placita  were  still  in  use  we  find  commissions  of  gaol 
delivery.     These  can  be  traced  to  the  very  beginning  of  the 
thirteenth  century.     The  king  by  such  a  commission  directed 
certain  justices  to  deliver  a  certain  gaol ;  that  is  to  say,  to  try 
all  the  prisoners  who  were  in  that  gaol.     This  must  in  times 
past  have  been  comparatively  light  work,  for  accused  persons 
were  seldom  imprisoned  unless  they  were  charged  with  homi- 
cide, and  this  commission   did   not,  I  think,  authorize   the 
taking  of  indictments  against  those  who  were  not  in  gaol. 
Such  commissions  are  still  issued  in  very  much  their  old  form 
— they  are  directed  to  the  judges  of  the  Westminster  courts, 
the  Serjeants,  queen's  counsel  and  circuit  officers,  and  empower 
them  or  any  two  of  them  (of  whom  one  must  be  a  judge, 
serjeant  or  queen's  counsel)  to  deliver  the  gaol. 

(3)  General  Commissions  of  Oyer  and  Terminer  are  not, 
I   think,  so  ancient;   they  come  into  use  as  the  eyres  are 
dropped.      They  are  directed  to  the  same   persons   as  the 
commissions  of  gaol  delivery,  and  usually,  I  believe,  to  some 
great  noblemen,  landowners  of  the  district     They  authorize 
these  commissioners  to  hear  and  determine  all  felonies  and 
other  crimes  in  the  county.     According  to  the  interpretation 
put  upon  these  two  commissions  in  modern  times  there  is  but 
little  difference  between  them  ;  they  authorize  almost  exactly 
the  same  things ;  but  it  seems  to  me  clear  that  in  old  times 
the  Oyer  and  Terminer  was  a  far  more  comprehensive  authority 
than  the  Gaol  Delivery,  since  the  latter  did  not  empower  the 


I  Influence  of  the  Circuits  141 

commissioners  to  receive  indictments  against  those  who  were 
not  in  gaol. 

Now  the  cases  which  came  before  justices  sitting  under 
these  two  last-mentioned  commissions  were  criminal  cases, 
pleas  of  the  crown,  and  they  were  not,  you  should  understand, 
cases  depending  in  courts  at  Westminster  like  the  civil  cases 
heard  at  nisiprius.  The  whole  procedure — indictment,  plead- 
ing, trial — took  place  before  the  commissioners,  and  they  could 
pass  judgment  and  sentence — and  thus  completely  dispose  of 
the  whole  case. 

The  general  result  of  this  system  of  commissions  was  that 
a  great  deal  of  royal  justice  was  done  not  by  the  permanent 
central  courts,  but  in  the  counties,  by  commissioners  sent  out 
just  for  that  occasion.  They  could  completely  dispose  of  the 
criminal  business  of  the  county,  and  could  preside  over  the 
trial  by  jury  of  civil  actions  depending  in  the  central  courts. 
In  course  of  time  more  and  more  of  this  circuit  work  was 
done  by  the  judges  of  the  king's  permanent  courts.  The 
details  of  the  system,  which  was  still  in  working  order  but 
a  few  years  ago,  you  will  have  to  learn  at  some  future  time: 
the  importance  of  it  in  the  history  of  our  law  has  been 
immense ;  owing  to  this  system  is  it  that  we  have  never  had 
powerful  local  tribunals  and  what  follows  from  such  tribunals, 
a  variety  of  provincial  laws ;  and  again  it  was  under  the 
discipline  of  the  eyres  that  the  counties  and  boroughs  learnt 
the  first  rudiments  of  representative  government. 

F.     Retrospect  of  Feudalism. 

Before  quitting  the  first  of  our  historic  periods  it  will  be 
well  for  us  to  take  a  brief  review  of  what  we  call  feudalism — • 
in  the  first  place  to  come  to  some  understanding  about  the 
meaning  of  the  word,  and  then  to  see  how  far  England  was 
ever  subject  to  what  can  properly  be  called  a  feudal  system. 
We  shall  thus  have  occasion  to  speak  of  the  growth  of  that 
system  of  land  law  which  hitherto  we  have  considered  merely 
as  an  existing  fact. 

And  first  we  will  observe  that  in  this  country  any  talk  of  a 
feudal  system  is  a  comparatively  new  thing :  I  should  say  that 


142  Constittitional  History  PERIOD 

we  do  not  hear  of  a  feudal  system  until  long  after  feudalism 
has  ceased  to  exist.  From  the  end  of  the  seventeenth  century 
onwards  our  English  law  grew  up  in  wonderful  isolation ;  it 
became  very  purely  English  and  insular.  Our  lawyers  seem 
to  have  known  little  and  cared  nothing  about  the  law  of 
foreign  countries,  nothing  about  Roman  jurisprudence.  Their 
English  authorities  were  all  sufficient  for  them,  and  neither 
our  parliaments  nor  our  courts  were  subjected  to  any  foreign 
influence.  Coke  in  his  voluminous  works  has  summed  up  for 
us  the  law  of  the  later  Middle  Ages,  but  in  all  his  books,  unless 
I  am  mistaken,  there  is  no  word  about  the  feudal  system.  If, 
we  may  say,  he  expounds  that  system  in  full  detail  so  far  as 
that  system  was  English,  he  is  quite  unconscious  that  he  is 
doing  anything  of  the  kind ;  he  has  no  thought  of  a  system 
common  to  the  nations  of  Europe,  he  is  speaking  of  our 
insular  law.  No,  for  'a  feudal  system*  we  must  turn  from 
Coke  to  a  contemporary  of  his,  that  learned  and  laborious 
antiquary,  Sir  Henry  Spelman.  Coke  was  born  in  1552  and 
died  in  1633  ;  Spelman  was  born  in  1562  and  died  in  1641  : 
so  they  were  just  contemporaries.  Now  were  an  examiner  to 
ask  who  introduced  the  feudal  system  into  England?  one  very 
good  answer,  if  properly  explained,  would  be  Henry  Spelman, 
and  if  there  followed  the  question,  what  was  the  feudal  system? 
a  good  answer  to  that  would  be,  an  early  essay  in  compara- 
tive jurisprudence.  JSpelman  reading  continental  books  saw 
that  English  law,  for  all  its  insularity,  was  a  member  of  a 
great  European  family,  a  family  between  all  the  members  of 
which  there  are  strong  family  likenessesA  This  was  for 
Englishmen  a  grand  and  a  striking  discovery;  much  that 
had  seemed  quite  arbitrary  in  their  old  laws,  now  seemed 
explicable.  They  learned  of  feudal  law  as  of  a  medieval  jus 
gentium,  a  system  common  to  all  the  nations  of  the  West. 
The  new  learning  was  propagated  among  English  lawyers  by 
Sir  Martin  Wright ;  it  was  popularized  and  made  orthodox 
by  Blackstone  in  his  easy  attractive  manner.  If  my  examiner 
went  on  with  his  questions  and  asked  me,  when  did  the  feudal 
system  attain  its  most  perfect  development  ?  I  should  answer, 
about  the  middle  of  the  last  century.  It  was  then,  I  should 
add,  that  the  notion  of  one  grand  idea  and  a  few  simple 


I  Feudalism  143 

principles  underlying  the  mass  of  medieval  law,  English  and 
continental,  was  firmly  grasped  and  used  as  a  means  of 
explaining  all  that  seemed  to  need  explanation  in  the  old 
English  law.  Now  this  was  an  important  step — this  con- 
necting of  English  with  foreign  law,  this  endeavour  to  find 
some  general  intelligible  principles  running  through  the 
terrible  tangle  of  our  old  books.  Most  undoubtedly  there 
was  much  in  our  old  law  which  could  be  explained  only  by 
reference  to  ideas  which  had  found  a  completer  development 
beyond  seas,  and  to  Blackstone  and  to  Wright,  and  above  all 
to  Spelman,  we  owe  a  heavy  debt.  But  since  Blackstone's 
day  we  have  learned  and  unlearned  many  things  about  the 
Middle  Ages.  In  particular  we  have  learnt  to  see  vast 
differences  as  well  as  striking  resemblances,  to  distinguish 
countries  and  to  distinguish  times.  If  now  we  speak  of  the 
feudal  system,  it  should  be  with  a  full  understanding  that  the 
feudalism  of  France  differs  radically  from  the  feudalism  of 
England,  that  the  feudalism  of  the  thirteenth  is  very  different 
from  that  of  the  eleventh  century.  The  phrase  has  thus 
become  for  us  so  large  and  vague  that  it  is  quite  possible  to 
maintain  that  of  all  countries  England  was  the  most,  or  for 
the  matter  of  that  the  least,  feudalized;  that  William  the 
Conqueror  introduced,  or  for  the  matter  of  that  suppressed, 
the  feudal  system. 

What  do  we  mean  by  feudalism  ?  Some  such  answer  as 
the  following  is  the  best  that  I  can  give — A  state  of  society! 
in  which  the  main  social  bond  is  the  relation  between  lord; 
and  man,  a  relation  implying  on  the  lord's  part  protection 
and  defence;  on  the  man's  part  protection,  service  and 
reverence,  the  service  including  service  in  arms.  This 
personal  relation  is  inseparably  involved  in  a  proprietary 
relation,  the  tenure  of  land — the  man  holds  land  of  the  lord, 
the  man's  service  is  a  burden  on  the  land,  the  lord  has  im- 
portant rights  in  the  land,  and  (we  may  say)  the  full  owner- 
ship of  the  land  is  split  up  between  man  and  lord.  The  lord 
has  jurisdiction  over  his  men,  holds  courts  for  them,  to  which 
they  owe  suit.  Jurisdiction  is  regarded  as  property,  as  a 
private  right  which  the  lord  has  over  his  land.  The  national 
organization  is  a  system  of  these  relationships :  at  the  head 


144  Constitutional  History  PERIOD 

there  stands  the  king  as  lord  of  all,  below  him  are  his 
immediate  vassals,  or  tenants  in  chief,  who  again  are  lords  of 
tenants,  who  again  may  be  lords  of  tenants,  and  so  on,  down 
to  the  lowest  possessor  of  land.  Lastly,  as  every  other  court 
consists  of  the  lord's  tenants,  so  the  king's  court  consists  of 
his  tenants  in  chief,  and  so  far  as  there  is  any  constitutional 
control  over  th6  king  it  is  exercised  by  the  body  of  these 
tenants.^ 

That  seems  our  idea  of  a  feudal  state.  It  is  vague,  it  can 
only  be  described  in  very  abstract  terms ;  the  concrete  actual 
realities  to  which  it  answers,  the  Germany,  France,  England 
of  different  centuries  may  differ  from  each  other  very  widely 
A  state  which  has  these  characteristics  may  be  a  powerful 
compact  centralized  kingdom ;  it  may  be  hardly  more  than 
a  loose  confederation  of  principalities,  a  practical  denial  of 
national  unity. 

Now  towards  such  an  organization  English  society  had 
been  making  progress  for  centuries  before  the  Norman 
Conquest— and,  as  it  seems,  with  an  ever  increasing  velocity. 
The  general  nature  of  the  process  I  shall  describe  in  the 
words  of  Stubbs. 

'  The  general  tendency  of  the  movement  may  be  described 
as  a  movement  from  the  personal  to  the  territorial  organiza- 
tion, from  a  state  of  things  in  which  personal  freedom  and 
political  right  were  the  leading  ideas,  to  one  in  which  personal 
freedom  and  political  right  had  become  so  much  bound  up 
with  the  relations  created  by  the  possession  of  land;  as  to  be 
actually  subservient  to  it... The  main  steps  are  apparent. 
In  the  primitive  German  constitution  the  free  man  of  pure 
blood  is  the  fully  qualified  political  unit;  the  king  is  the  king 
of  the  race ;  the  host  is  the  people  in  arms ;  the  peace  is  the 
national  peace;  the  courts  are  the  people  in  council ;  the  land 
is  the  property  of  the  race,  and  the  free  man  has  a  right  to  his 
share.  In  the  next  stage  the  possession  of  land  has  become 
the  badge  of  freedom ;  the  free  man  is  fully  free  because  he 
possesses  land,  he  does  not  possess  the  land  because  he  is 
free ;  the  host  is  the  body  of  landowners  in  arms,  the  courts 
are  the  courts  of  the  landowners.  But  the  personal  basis  is 
not  lost  sight  of:  the  landless  man  may  still  select  his  lord ; 


1  The  Economic  Aspect  145 

the  hide  is  the  provision  of  the  family  ;  the  peace  implies  the 
maintenance  of  rights  and  duties  between  man  and  man  ;  the 
full-free  is  the  equal  of  the  noble  in  all  political  respects. 
In  a  further  stage  the  land  becomes  the  sacramental  tie  of  all 
public  relations,  the  poor  man  depends  on  the  rich,  not  as  his 
chosen  lord,  but  as  the  owner  of  the  land  that  he  cultivates, 
the  lord  of  the  court  to  which  he  does  suit  and  service,  the 
leader  whom  he  is  bound  to  follow  to  the  host ;  the  great 
landowner  has  his  own  peace,  and  administers  his  own  justice1/ 

If  for  one  moment  we  trespass  outside  the  bounds  of  legal 
history,  we  may,  I  think,  observe  that  one  main  cause  of  this 
movement  is  economic.  The  distribution  of  wealth  becomes 
more  and  more  unequal.  Conquest  and  feuds  may  have 
something  to  do  with  this,  but  we  need  not,  indeed  cannot, 
ascribe  it  chiefly  to  violence.  The  better  the  peace  is  kept, 
the  better  the  law  is  administered,  the  more  progress  is  made 
towards  free  contract  and  free  alienation,  the  more  rapidly 
will  great  inequalities  become  common.  In  a  time  when 
there  is  little  manufacture  this  will  mean  that  land  will  be 
unequally  distributed  ;  land  becomes  amassed  in  the  hands  of 
the  rich,  and  wealth  breeds  wealth.  But  the  rich  do  not 
really  want  the  land,  they  want  the  produce  of  land.  They 
want  their  lands  cultivated.  What  is  more,  they  are  willing 
to  let  out  their  lands  on  very  permanent  terms.  There  is  no 
speculatjo^ncxJ^uying  to  sell  or  sdling  to  buy  ;  to  grant  out 
lancT  for  ever  at  a  perpetual  rent — to  receive  it  on  those 
terms  is  no  imprudent  bargain — no  rise  or  fall  in  prices  is 
anticipated.  I  think  it  is  well  to  bear  this  in  mind  ;  for  there 
seems  to  me  a  tendency  to  lay  too  much  stress  on  the  military 
and  political,  too  little  on  the  economic  side  of  feudalism. 
When  considered  it  seems  not  unnatural  that  a  society  con- 
sisting of  landowners,  free  and  barbarous,  should  by  quite 
peaceful  causes  become  transmuted  into  a  society  of  landlords 
and  tenants.  But  if  we  may  look  to  such  abstract  considera- 
tions for  the  cause,  we  must  look  elsewhere  for  the  facts  of 
feudalism. 

Now  that  personal  relation  between  lord  and  man  which 
is  one  ingredient  of  feudalism,  is  indeed  old  ;  we  may  see  it 

1  ConsliUUwual  History,  vol.  I,  §  69. 
M.  10 


146  Constitutional  History  PERIOD 

in  the  first  page  of  the  history  of  our  race.  It  can  be  traced 
to  the  relation  between  the  German  princeps  and  his  comites 
described  by  Tacitus.-  Attached  to  the  chieftain  by  the  closest 
ties  is  a  body  of  warlike  companions — in  many  cases  the  sons 
of  nobles,  ambitious  of  renown  :  he  provides  their  equipment, 
entertains  them  at  his  board.  In  war  they  fight  for  him,  at 
once  his  defenders  and  the  rivals  of  his  prowess.  They  are 
bound  to  protect  him,  perhaps  they  even  swear  to  do  so. 
The  comes  is  a  dependent,  but  such  dependence  is  glorious ; 
such  service  is  preferable  to  the  most  perfect  freedom.  It 
was  under  leaders  surrounded  by  such  bands  of  comites  that 
England  was  conquered  by  the  German  tribes.  The  comes 
of  Tacitus  may  be  recognized  in  tic&gesith  of  the  Anglo-Saxon 
laws,  a  name  which  gradually  gives  way  to  that  of  thegn,  a 
word  which  to  start  with  means  simply  servant  But  at  first 
we  cannot  call  this  a  feudal  institution;  it  seems  utterly  uncon- 
nected with  any  tenure  of  land.  The  comes  is  not  a  landowner 
or  land-holder,  he  is  an  inmate  of  his  leader's  household. 
But  in  England  the  thegn  does  come  to  be  a  landowner 
The  folk-land,  the  national  land  not  yet  appropriated,  seems 
regarded  as  the  natural  fund  out  of  which  rewards  may  be 
provided  for  those  who  in  war  or  otherwise  have  deserved 
well  of  the  state1.  The  king  with  the  counsel  and  consent 
of  his  wise  men  confers  land  on  his  distinguished  followers. 
In  England  thegnage  tends  to  become  territorial.  It  seems 
expected  that  a  thegn  will  naturally  be  a  large  landowner. 
The  process  goes  further — the  large  landowner  is  worthy 
of  thegn  right ;  he  who  has  five  hides  of  land  and  certain 
other  rights  which  seem  to  be  rights  of  jurisdiction  over 
his  dependents  is  entitled  to  be  deemed  a  thegn,  and  so 
receives  certain  privileges  such  as  an  increased  wergild,  or 
an  increased  value  for  his  oath.  Then  again  from  the  be- 
ginning, the  thegn  is  the  warrior ;  all  free  men  are  bound 
to  fight ;  the  army  is  the  nation  in  arms ;  but  the  thegn 
is  specially  bound  to  fight — bound  to  fight  for  his  leader. 
As  then  the  thegn  becomes  a  large  landowner,  and  as  the 
large  landowner  as  such  comes  to  be  regarded  as  worthy 

1  See  p.  57. 


I  Thegn-Service  147 

of  the  privileges  of  the  thegnage,  so  Ihe-speeml  duty  of 
fighting,  and  fighting  for  the  king,  comes  to  be  a  duty  in- 
cumbent on  the  large  landowners.  We  know  too  that  the  folk- 
land,  the  unappropriated  land  which  according  to  the  older 
idea  had  belonged  to  the  nation,  had  been  becoming  more 
and  more  the  king's  demesne  land  in  fact,  if  not  in  theory, 
Stubbs  notices  that  from  Alfred's  time  onwards  the  clause 
in  the  deeds  granting  this  folk-land,  which  expresses  the 
counsel  and  consent  of  the  witan,  becomes  rarer  though  it 
never  disappears  altogether.  The  wise  men  rather  witness  the 
grant  than  authorize  it.  After  the  Conquest,  all  this  folk-land 
became  simply  terra  Regis,  the  king's  demesne ;  but  large  as 
the  change  may  seem  to  us,  very  possibly  it  was  a  change 
rather  in  terminology  than  in  anything  else ;  it  was  a  re- 
cognition of  what  had  well-nigh  become  an  accomplished  fact. 
The  thegn  then  who  has  received  a  grant  of  such  land  and 
who  is  bound  to  military  service — it  takes  but  a  small  change 
of  ideas,  a  change  in  the  point  of  view  from  which  the  facts 
are  seen,  to  regard  him  as  holding  land  of  the  king  by  military 
service.  Exactly  wherein  consisted  the  special  military  obliga- 
tion of  the  thegn,  we  do  not  well  know.  According  to  the  old 
order  of  ideas,  every  man  was  bound  to  serve  in  the  national 
army,  the  king's  thegns  were  bound  to  fight  round  him  and  for 
him.  As  the  thegnage  became  connected  with  the  possession 
of  land — so  that  the  owner  of  five  hides  was  worthy  of  thegn- 
right — so,  it  would  seem,  a  special  obligation  to  serve  and 
find  soldiers  was  laid  on  the  great  landowners  and  in  some 
way,  which  we  cannot  now  precisely  determine,  was  pro- 
portioned to  their  holdings.  But  to  the  last,  to  the  day  of 
the  Conquest,  the  old  national  army  could  be  called  out,  and 
it  is  very  necessary  to  remember  that  the  Conquest  did  not 
put  an  end  to  this;  the  old  national  army  exists  alongside  of 
the  feudal  army. 

But  it  is  not  only  the  king  who  has  thegns — great  men 
may  have  them :  indeed  it  seems  that  a  thegn  may  have 
leaser  thegns  dependent  on  him — just  as  in  after-days  the 
king's  tenant  in  capite  might  have  tenants  holding  of  him 
by  knight's  service ;  still  the  idea  of  tenure  is  not  the  essence 
of  thegnship.  The  history  of  the  thegnship  is  brought  out 

10 2 


148  Constitutional  History  PERIOD 

by  laws  concerning  heriots.  Now  in  its  origin  the  heriot  is 
the  equipment  of  arms  which  the  princeps  has  provided  for 
the  comes  ;  on  the  death  of  the  latter,  it  must  be  given  back 
— the  word  just  means  equipment  for  the  army.  The  thegn 
ceases  to  be  a  member  of  the  household,  becomes  a  land- 
owner and  provides  his  own  arms;  but  still  on  his  death 
the  heriot  is  rendered.  It  now  takes  the  form  of  arms  and 
money,  due  to  the  king  on  the  thegn's  death.  Thus  in  the 
laws  of  Canute,  on  the  death  of  a  king's  thegn  four  horses 
— two  saddled,  two  unsaddled — two  swords,  four  spears,  as 
many  shields,  a  helm,  breastplate  and  50  mancuses  of  gold 
are  due1.  This  is  important  under  the  Norman  kings :  these 
heriots  come  to  be  regarded  as  reliefs,  sums  paid  by  the  heir 
on  his  taking  up  the  land  which  had  been  his  ancestor's,  a 
burden  of  tenure.  The  payment  may  remain  the  same,  the 
mode  of  regarding  it  is  different  Thus  the  way  of  feudalism 
is  prepared. 

This  tie  of  man  to  lord  was  regarded  as  a  tie  of  the  most 
sacred  kind.  While  many  offences  which  we  should  think 
very  grave  can  still  be  compounded  with  money,  treason 
against  the  lord,  be  he  the  king  or  another  lord,  is  a  capital 
crime.  This  is  laid  down  in  the  laws  of  Alfred,  and  to  these 
laws  there  is  a  curious  preface  which  shows  the  strength  of 
the  feeling.  The  king  explains  that  after  the  nations  had 
accepted  the  Christian  faith,  it  was  ordained  by  the  wise 
men  (spiritual  and  lay)  that  for  almost  every  first  offence  a 
money  payment  might  be  accepted,  save  for  treason  to  the 
lord  for  which  no  mercy  should  be  shown,  since  God  Almighty 
showed  none  to  those  who  despised  him,  and  Christ,  God's 
son,  adjudged  none  to  those  who  sold  him,  and  commanded 
that  a  lord  should  be  loved  as  one's  self.  The  crime  of  Judas 
is  the  crime  of  one  who  betrayed  his  lord2. 

This  relation  of  man  and  lord  we  find  in  all  parts  of  the 
social  structure.  To  start  with  it  is  a  relation  into  which 
men  enter  voluntarily.  Then,  however,  we  find  the  legis- 
lators requiring  that  men  shall  have  lords.  This  rule  is 
laid  down  in  the  laws  of  Athelstan  (925-940) — every  landless 

1  Select  Charters,  p.  74,  Liebermann  I,  pp.  357—9. 

2  Select  Charlers,  p.  62,  Liebermann  l,  pp.  45 — 6. 


I  Commendation  149 

man  must  have  a  lord :  if  he  has  not  gtit  one,  one  must 
be  found  for  him  by  his  kindred1.  This  we  may  regard 
as  a  police  measure.  The  law  has  no  hold  on  the  landless 
man ;  too  often  he  can  break  the  law  and  laugh  at  it ;  there 
is  nothing  of  his  that  you  can  take  from  him ;  escape  from 
justice  is  easy;  he  must  have  a  lord  who  will  be  bound  to 
produce  him  in  court  should  he  be  wanted.  Thus  positive 
legislation  extends  the  relation  of  dependence ;  it  is  required 
that  men  must  either  have  land  or  have  lords.  The  landless 
man  may  still  be  fully  free,  may  have  political  rights,  but 
he  is  dependent  The  change  has  begun  which  makes  free- 
holding,  and  not  personal  freedom,  the  qualification  for  poli- 
tical rights.  The  landless  man  is  represented  in  the  courts 
by  his  lord  ;  his  lord  begins  to  answer  for  him,  he  is  losing 
his  right  to  attend  on  his  own  behalf,  to  sit  there  as  judge 
and  declare  the  law. 

V 

Probably  he  finds  this  very  convenient  Attendance  at 
the  courts  is  a  sore  burden  for  the  poorer  men ;  they  would 
go  there  to  little  purpose,  merely  to  see  things  settled  for 
them  by  the  richer  folk ;  while  as  to  their  private  rights  the 
lord  will  look  after  these,  for  they  are  much  implicated  with 
his  own  rights.  We  can  see  that  it  must  have  been  con- 
venient to  have  a  lord ;  for  what  the  landless  are  bound  to 
do  by  law,  the  smaller  landowners  do  of  their  own  free  will ; 
they  commend  themselves  to  lords.  We  learn  from  Domesday 
that  in  some  parts  of  England  this  practice  of  commending 
oneself  had  become  common,  especially  in  the  eastern  counties. 
The  smaller  landowners  had  placed  themselves  in  a  relation 
of  dependence  on  superior  lords.  What  exactly  was  implied 
by  this  we  do  not  know — and  very  possibly  commendation 
meant  different  things  in  different  cases — sometimes,  it  would 
seem,  the  dependent  was  still  able  to  transfer  himself  and  his 
land  from  one  lord  to  another ;  sometimes  being  personally 
quite  free,  he  could  leave  his  lord  but  then  must  leave  his 
land,  and  in  such  cases  it  is  a  delicate  and  a  verbal  question 
whether  the  land  is  his  land  or  has  become  his  lord's.  No 
legislation  had  turned  the  smaller  owners  into  tenants  of 
other  men's  lands  or  even  compelled  them  to  have  lords — 
1  Select  Charters  y  p.  66,  Liebermann  I,  p.  170. 


150  Constitutional  History  PERIOD 

the  change  had  been  brought  about  by  the  private  acts  of 
individuals  and  the  result,  as  sketched  for  us  by  modern 
writers,  is  intricate  and  confused. 

But  very  often  indeed,  something  which  we  cannot  but 
call  a  tenure  of  land,  a  holding  by  one  man  of  another,  must 
have  been  created  in  a  simpler  fashion.  By  means  of  grants 
of  folk-land  territories  were  being  amassed  in  the  hands  of 
great  men  and  religious  houses1.  These  again  granted  out 
their  land  to  cultivators.  Generally  such  grants  were  of  a 
permanent  kind :  grants  to  a  man  and  his  heirs,  or  grants 
to  a  man  and  a  certain  specified  number  of  successive  heirs 
in  return  for  labour  services,  ploughings  and  reapings  of  the 
lord's  own  demesne  lands,  or  rents  payable  in  money  or  in 
kind.  We  do  not  find  grants  or  leases  for  years — I  believe 
that  among  all  the  Anglo-Saxon  charters,  there  is  but  one 
specimen  of  such  a  bargain.  Permanence  is  desired  on  both 
sides — there  is  no  speculating  for  a  rise  or  fall  of  prices  or  of 
rents.  And  here  we  have  something  very  like  the  estate  in  fee 
simple  of  later  law — the  feudal  division  of  complete  owner- 
ship between  lord  and  tenant.  The  cultivator  has  perhaps 
under  the  terms  of  the  grant  an  estate  that  is  to  enduie  for 
ever,  or  at  least  so  long  as  he  has  heirs ;  but  the  services  are 
burdens  on  .the  land — very  possibly  if  his  heirs  fail  the  land 
will  again  become  the  land  of  the  giver,  very  possibly  if  the 
services  fall  into  arrear,  the  giver  may  resume  the  land.  We 
know  very  little  about  all  this — for  the  titles  of  the  smaller 
people,  the  cultivators  of  the  land,  were  seldom  evidenced  by 
written  instruments.  But  it  is  very  probable  that  before  the 
Norman  Conquest,  a  large  part  of  England  was  holden  prac- 
tically on  the  terms  of  that  socage  tenure  that  we  find  existing 
at  a  later  day — the  possessor  of  the  land  being  bound  to 
perform  services  more  or  less  onerous  in  return  for  the  land, 
to  plough  the  lord's  own  land,  to  pay  rent  in  money  or  in 
kind.  All  that  seems  wanting  to  turn  such  a  possession  into 
a  tenure  by  one  man  of  another  is  just  the  technical  termi- 

1  Maitland  would  possibly  have  rewritten  this  sentence  somewhat  as  follows : 
'By  means  of  royal  and  other  books  (or  charters)  superiorities  over  land  were 
being  conferred  upon  religious  houses  and  great  men.'  Domesday  Book  and 
Beyond,  pp.  226—58,  293—318. 


I  Private  Jurisdiction  1 5 1 

nology — and  to  a  uniform  technical  terminology  Anglo-Saxon 
land  law  had  not  yet  arrived.  So  far  as  we  can  now  see,  it 
had  no  theory  of  tenure. 

We  approach  here  a  difficult  subject — perhaps  the  most 
difficult  in  the  history  of  English  law — namely,  the  history 
of  villeinage,  the  history  of  that  servile  land-holding  which 
is  brought  to  our  notice  in  the  books  of  the  twelfth  and 
thirteenth  centuries.  It  seems  highly  probable  that  at  the 
date  of  the  Norman  Conquest  there  was  a  large  mass  of 
unfree  tenants  cultivating  lands  on  much  the  same  terms  as 
those  which  constitute  the  villeinage  of  later  days.  Slaves 
there  most  certainly  were  throughout  the  Anglo-Saxon  period 
— the  existence  of  a  class  of  persons  half-servile,  half-free,  is 
a  more  disputable  point. 

Another  element  of  feudalism  is  plainly  visible.  For 
some  time  before  the  Norman  Conquest — how  long  is  a 
debated  question — jurisdiction,  the  right  to  hold  courts,  had 
been  passing  into  private  hands.  The  doctrine  had  long 
been  gaining  ground  that  justice  was  the  king's,  that  he 
could  grant  it  to  others,  could  grant  to  them  the  right  of 
holding  courts.  Certain  it  is  that  Edward  the  Confessor 
had  made  such  grants  on  a  lavish  scale.  Our  evidence 
chiefly  consists  of  grants  made  to  churches  and  religious 
houses — ecclesiastical  bodies  were  careful  to  preserve  their 
title  deeds,  and  so  they  have  come  down  to  us — but  there 
can  be  little  doubt  that  similar  grants  were  made  to  great 
lay  landowners.  England  was  fast  becoming  a  land  of 
private  courts — courts  in  which  the  lord  did  justice  among 
his  dependents,  those  dependents  being  bound  to  come  and  sit 
there,  and  help  in  making  of  judgments.  Nothing,  I  believe, 
is  more  the  essence  of  all  that  we  mean  when  we  talk  of 
feudalism  than  the  private  court — a  court  which  can  be  in- 
herited and  sold  along  with  land.  Looking  at  this  we  may 
say  that  England  was  plunging  into  feudalism,  and  feudalism 
of  a  dangerous  kind — for  during  the  Confessor's  reign  the 
central  power  was  growing  weak,  the  great  lords  were  growing 
strong.  The  facts  of  feudalism  seem  to  be  there — what  is 
wanting  is  a  theory  which  shall  express  those  facts.  That 
came  to  us  from  Normandy. 


152  Constitutional  History  PERIOD 

The  Conqueror  came  from  a  land  which  had  formed  part 
of  the  territory  of  the  Prankish  Empire,  and  within  that 
Empire  the  process  which  we  have  seen  at  work  in  England 
had  gone  on  faster  and  further.  The  soil  had  long  been 
Roman.  The  Prankish  conquest  of  Gaul  had  differed  es- 
sentially from  the  English  conquest  of  Britain.  It  had  been 
effected  slowly  by  a  German  nation  which  had  become 
Christian  during  the  conquest.  A  large  population  of  the 
old  inhabitants — Celtic  by  blood,  Roman  in  language  and 
in  law — became  subject  to  Teutonic  rulers.  In  England  the 
small  landowner  was,  at  least  generally,  a  free  Englishman ; 
in  Gaul  he  was  a  conquered  provincial.  What  is  more,  in 
course  of  time  the  Romance  tongue  prevailed  in  France  over 
the  German  speech  of  the  conquerors,  and  the  customs  of 
the  Franks  were  impregnated  by  Roman  law.  This  Roman 
influence  is  apparent  at  once  when  we  compare  our  old  dooms 
with  the  still  older  Lex  Salica,  the  code  of  the  Salian  Franks ; 
the  former  are  written  in  Anglo-Saxon,  the  latter  is  written 
in  Latin. 

Now  on  the  continent  the  history  of  feudalism  centres 
round  the  beneficium,  or,  as  it  came  to  be  called,  thefeodum. 
It  is  this,  of  course,  which  has  given  us  the  word  feudal.  The 
wordfeodum  does  not,  I  believe,  occur  before  the  end  of  the 
ninth  century.  It  is  derived  from  the  German  word  for  cattle, 
which,  like  the  Roman  pecunia  derived  from  pecus,  comes  to 
mean  money  or  property  in  general.  It  is  somewhat  curious 
that  the  two  words  which  English  lawyers  very  frequently 
contrast  as  quite  opposed  to  each  other,  the  fee  and  the 
chattel,  should  both  refer  us  back  to  what  is  perhaps  the 
oldest  form  of  property,  namely  cattle,  for  chattel  is  from 
the  low  Latin  catallum,  cattle.  But  the  beneficium  was  an 
old  institution ;  it  appears  very  soon  after  the  German  tribes 
overrun  the  Roman  Empire.  It  is  a  gift  of  land  made  by 
the  king  out  of  his  own  estate,  the  grantee  coming  under  a 
special  obligation  to  be  faithful — not,  it  seems,  a  promise  of 
definite  service,  but  a  general  promise  to  be  faithful  in  con- 
sideration of  the  gift  Such  grants  were  freely  made  by  the 
Prankish  kings  to  their  great  men.  At  first,  it  seems  the 
grant  was  made  merely  for  the  life  of  the  grantee.  Gradually, 


1  The  Idea  of  Tenure  153 

however,  the  benefice  assumed  a  hereditary  character :  it  was 
considered  that  the  heir  of  the  dead  beneficiary  had  a  claim 
to  a  renewal  of  the  benefice.  The  hereditary  character  of  the 
benefice  is  already  recognized  in  a  capitulary  (an  ordinance) 
of  877 — two  hundred  years  before  the  Norman  Conquest.  All 
offices  in  the  Middle  Ages  tend  to  become  hereditary — the 
kingship  tends  to  become,  actually  becomes,  hereditary;  our 
sheriffdoms  tend  to  become  hereditary,  in  a  few  cases  actually 
become  hereditary;  the  English  peers  gradually  acquire  a 
hereditary  right  to  be  called  to  meet  the  king  in  parliament. 
So  also  the  beneficium  or  feodum  became  hereditary — and 
yet  the  heir  did  not  at  once  step  into  his  ancestor's  shoes : 
he  did  not  hold  the  fief  until  he  had  been  invested,  put  in 
seisin  by  the  king,  and  a  payment  fixed  more  or  less  by 
varying  custom  might  be  required  of  him  on  thus  relieving 
or  taking  up  the  fallen  inheritance.  This  was  the  relief. 

To  express  the  rights  thus  created,  a  set  of  technical  terms 
was  developed : — the  beneficiary  or  feudatory  holds  the  land 
of  his  lord,  the  grantor — A  tenet  terrain  de  B.  The  full 
ownership  (dominiinri)  of  the  land  is  as  it  were  broken  up 
between  A  and  B ;  or  again,  for  the  feudatory  may  grant 
out  part  of  the  land  to  be  held  of  him,  it  may  be  broken  up 
between  A,  B,  and  C,  C  holding  of  B  and  B  of  A,  and  so 
on,  ad  infinitum. 

The  genesis  of  this  idea  of  tenure,  of  divided  ownership, 
has  been  and  still  is  very  warmly  disputed  among  continental 
writers.  I  may  refer  you  to  the  writings  of  Maine — Ancient 
Lawy  chap,  viii  (last  part),  and  Early  Law  and  Custom,  chap.  x. 
Very  possibly  some  ideas  of  Roman  law  helped  towards  the 
result,  but  the  result  is  a  notion  which  is  not  Roman — that  of 
a  dominium  split  up  between  lord  and  tenant. 

Then  also  jurisdiction  passed  into  private  hands — the  king 
granted  it  out  along  with  the  land  to  be  held  of  him.  The 
idea  that  jurisdiction  is  the  king's  property  and  may  be 
alienated  by  him  had  become  current  in  France  earlier  than  in 
England,  the  kingship  had  been  stronger,  and  from  the  middle 
of  the  ninth  century  onwards  such  grants  became  common. 
This,  it  is  to  be  remembered,  is  the  time  when  the  great 
Frank  Empire  went  to  pieces— the  central  authority  became 


154  Constitutional  History  PERIOD 

little  more  than  a  name — the  effective  courts  were  the  courts 
of  the  great  proprietors.  Also,  it  is  to  be  remembered  that 
this  is  the  time  when  the  Northmen  subdued  Normandy — the 
Norman  duke  became  the  vassal  of  the  king  of  the  French, 
became  so  by  commendation — Duke  Richard  of  Normandy 
commended  himself  to  Hugh  duke  of  the  French,  whose  de- 
scendants became  kings.  But  the  king's  power  in  Normandy 
was  hardly  more  than  nominal.  A  disciple  of  Austin  would 
probably  say  that  Normandy  was  an  independent  political 
community,  though  this  was  not  quite  the  theory  of  the  time. 
The  process  of  feudalization  had  gone  on  within  the  duchy ; 
the  lords  of  Norman  extraction  dominated  over  a  people  of 
another  blood  and*  formed  a  powerful  aristocracy — only  the 
personal  character,  the  heavy  hand  of  the  dukes,  kept  to- 
gether the  duchy  as  a  whole. 

William  came  from  Normandy  to  claim  the  English  crown 
which,  as  he  alleged,  was  his  by  right  as  the  heir  whom  the 
Confessor  had  chosen.  It  was  his  own  personal  right  that  he 
came  to  seek — no  right  that  Normans  had  to  England,  but 
a  right  that  he,  William,  had  to  be  king  of  the  English.  The 
claim  may  have  been,  seemingly  was,  indefensible,  but  its 
nature  should  be  remembered.  To  have  asserted  a  title  by 
victory  would  have  encouraged  very  dangerous  ideas :  if  the 
duke  had  fought  and  won,  had  not  his  earls  and  barons  fought 
and  won  also?  No,  an  air  of  legality  was  given  to  the 
whole  affair — William  succeeded  to"  Edward's  position.  The 
Conquest  threw  into  his  hands  a  vast  quantity  of  land.  Those 
who  fought  against  him  were  rebels,  and  their  land  was  for- 
feited by  their  rebellion ;  each  new  outbreak  led  to  fresh 
confiscations.  His  followers  had  to  be  rewarded,  and  they 
were  rewarded  liberally.  But  there  was  no  general  scramble: 
the  new  owners  step  into  the  places  of  old  owners ;  a  for- 
feiture and  then  a  grant  by  the  king  is  the  link  in  the  title. 
Still  by  means  of  a  quiet  assumption  feudal  tenure  becomes 
universal.  All  land  is  held  of  the  king. 

It  is,  I  suppose,  of  this  that  an  English  lawyer  first  thinks 
when  he  hears  any  talk  of  feudalism.  For  some  centuries 
past  all  the  feudalism  that  has  been  of  importance  in  England 
has  been  merely  land  law,  real  property  law,  a  part  of  private 


I  Effect  of  the  Conquest  155 

law.  Our  land  law  we  still  say  is  feudal ;  all  land  is  still  held 
of  the  king  mediately  or  immediately ;  this  is  as  true  to-day 
as  it  ever  was.  But  the  mere  fact  that  it  is  true  to-day  shows 
that  a  legal  theory  of  this  sort  is  not  the  essence  of  feudalism, 
for  no  one  would  think  of  calling  the  England  of  our  day 
a  feudal  state.  If  we  examine  our  notion  of  feudalism,  does 
it  not  seem  this,  that  land  law  is  not  private  law,  that  public 
law  is  land  law,  that  public  and  political  rights  and  duties 
of  all  sorts  and  kinds  are  intimately  and  quite  inextricably 
blended  with  rights  in  land  ?  Such  rights  carry  with  them  the 
right  to  attend  the  common  council  or  court  of  the  realm,  the 
common  council  or  court  of  the  county ;  jurisdictions,  military 
duties,  fiscal  burdens  are  consequences  of  tenure;  the  con- 
stitution of  parliament,  of  the  law  courts,  of  the  army,  all 
seems  as  it  were  a  sort  of  appendix  to  the  law  of  real 
property. 

Now  this  theory  that  land  in  the  last  resort  is  held  of  the 
king,  becomes  the  theory  of  our  law  at  the  Norman  Conquest 
It  is  assumed  in  Domesday  Book,  the  outcome  of  that  great 
survey  of  which  we  are  now  keeping  the  Sooth  anniversary: 
quietly  assumed  as  the  basis  of  the  survey.  On  the  other 
hand  we  can  say  with  certainty  that  before  the  Conquest  this 
was  not  the  theory  of  English  law.  Towards  such  a  theory 
English  law  had  been  tending  for  a  long  while  past,  very 
possibly  the  time  was  fast  approaching  when  the  logic  of  facts 
would  have  generated  this  idea ;  the  facts,  the  actual  legal 
relationships,  were  such  that  the  wide  principle  '  all  land  held 
in  the  last  resort  of  the  king '  would  not  greatly  disturb  them. 
Still  this  principle  had  not  been  evolved.  It  came  to  us  from 
abroad  ;  but  it  came  in  the  guise  of  a  quiet  assumption  ;  no 
law  forced  it  upon  the  conquered  country ;  no  law  was  neces- 
sary ;  in  Normandy  lands  were  held  of  the  Duke,  the  Duke 
again  held  of  the  king ;  of  course  it  was  the  same  in  England; 
no  other  system  was  conceivable.  The  process  of  confiscation 
gave  the  Conqueror  abundant  opportunity  for  making  the 
theory  true  in  fact;  the  followers  whom  he  rewarded  with 
forfeited  lands  would  of  course  hold  of  him;  the  great  English 
landowners,  whose  lands  were  restored  to  them,  would  of 
course  hold  of  him.  As  to  the  smaller  people,  when  looked  at 


156  Constitutional  History  PERIOD 

from  the  point  of  view  natural  to  a  Norman,  they  were  already 
tenants  of  the  greater  people,  and  when  the  greater  people 
forfeited  their  rights,  there  was  but  a  change  of  lords.  This 
assumption  was  sometimes  true  enough,  perhaps  in  other 
cases  quite  false ;  in  many  cases  it  would  seem  but  the  intro- 
duction of  a  new  and  simpler  terminology;  he  who  formerly 
was  a  landowner  personally  bound  to  a  lord,  became  a  land- 
tenant  holding  land  of  a  lord.  There  was  no  legislation,  and 
I  believe  that  no  chronicler  refers  to  the  introduction  of  this 
new  theory.  As  to  the  later  lawyers,  Glanvill  and  Bracton, 
they  never  put  it  into  words.  They  never  state  as  a  note- 
worthy fact  that  all  land  is  held  of  the  king  ;  of  course  it  is. 
This  is  very  remarkable  in  Bracton's  great  treatise.  His 
general  learning  about  property  he  draws  from  the  Roman 
books,  and  propounds  in  the  language  of  Roman  law.  The 
ultimate  tenant  of  land,  the  lowest  freeholder  in  the  feudal 
scale,  is  the  owner  of  the  land,  he  has  dominium  rei,  pro- 
prietatem,  he  is  proprietarius ;  but  of  course  he  holds  of 
someone,  tenet  de  some  lord;  if  he  holds  of  no  other,  then 
tenet  de  domino  rege\  there  is  nothing  here  that  deserves 
explanation. 

Now  if  feudalism  consists  only  in  this  legal  theory  of 
tenure,  then  I  believe  we  may  say  that  of  all  European 
countries  England  was  the  most  perfectly  feudalized.  Every 
inch  of  land  was  brought  within  it.  The  great  shock  of  the 
Norman  Conquest  rendered  the  material  very  plastic ;  all 
could  be  brought  under  one  idea.  If  for  example  we  look 
at  the  law  of  medieval  Germany,  we  find  it  otherwise ;  there 
is  feudal  land  and  non-feudal  land,  there  are  feudal  holders 
and  non-feudal  owners  side  by  side.  There  are  two  different 
bodies  of  law,  Landrecht  and  Lehnrecht,  Common  Land  Law 
and  Feudal  Law.  We  Englishmen  can  hardly  translate  these 
terms;  our  Landrecht  is  all  Lehnrecht>  all  our  land  law  is  law 
about  land  holden  by  feudal  tenure.  But  we  must  not  forget 
to  look  ^t  both  sides  of  this  truth ;  our  Lehnrecht  is  Landrecht, 
law  not  for  a  particular  class  of  persons  holding  military  fiefs, 
but  the  general  law  of  rights  in  land.  This  I  think  of  great 
importance  ;  the  wide  extension  of  the  feudal  idea  deprives  it 
of  much  of  its  most  dangerous  meaning;  it  does  not  create 


I          Peculiarity  of  English  Land  Law       157 

a  caste ;  it  has  to  serve  for  the  tenant  in  socage,  the  agricul- 
tural classes  as  well  as  for  the  tenant  by  knight  service. 
Many  things  in  our  legal  history  are  thus  explained,  for 
instance,  the  growth  of  primogeniture.  In  origin  it  belongs  to 
a  military  system  ;  slowly  it  spread  from  the  military  tenants 
to  the  socagers,  it  ceased  to  be  the  mark  of  a  class,  it  became 
common  law1.  How  consistently  the  idea  of  tenure  was  carried 
through  the  whole  land  law,  and  how  little  that  theory  might 
mean,  is  best  seen  when  we  look  at  the  tenure  by  frankal- 
moign.  The  monastery  pays  no  rent,  none  of  the  ordinary 
profits  of  tenure  can  accrue  to  the  lord,  for  his  tenant  never 
dies,  never  leaves  an  heir,  never  commits  felony ;  but  to  save 
the  theory  he  is  still  a  tenant  holding  by  the  service  of  saying 
prayers  for  the  lord. 

The  Norman  Conquest  then  introduces  the  general  theory 
of  tenure — makes  it  the  theory  of  the  whole  land  law.  Also  it 
draws  tighter  the  bond  which  already  is  beginning  to  connect 
military  service  with  the  holding  of  land.  Still  we  must  not 
suppose  that  the  Conqueror  definitely  apportioned  the  quan- 
tum of  military  service  to  be  exacted  from  his  feudatories. 
'We  have/  says  Stubbs,  'no  light  on  the  point  from  anys 
original  grant  made  by  the  Conqueror  to  any  lay  follower;! 
but  judging  from  the  grants  made  to  the  churches  we  cannoti 
suppose  it  probable  that  such  gifts  were  made  on  any  ex-j 
pressed  condition,  or  accepted  with  a  distinct  pledge  to! 
provide  a  certain  contingent  of  knights  for  the  king's  service.  | 
The  obligation  of  national  defence  was  incumbent  as  of 
old  on  all  landowners,  and  the  customary  service  of  one 
fully-armed  man  for  each  five  hides  was  probably  the  rate 
at  which  the  newly  endowed  follower  of  the  king  would  be 
expected  to  discharge  his  duty.  The  wording  of  the 
Doomsday  survey  does  not  imply  that  in  this  respect  the 
new  military  service  differed  from  the  old  ;  the  land  is 
marked  out,  not  into  knight's  fees,  but  into  hides,  and  the 
number  of  knights  to  be  furnished  by  a  particular  feudatory 
would  be  ascertained  by  inquiring  the  number  of  hides  that  he 
held,  without  apportioning  the  particular  acres  that  were  to 

1  This  idea  is  worked  out  in  the  History  of  English  Law,  vol.  II,  pp.  260  —  73. 


158  Constitutional  History  PERIOD 

maintain  a  particular  knight1.'  This  apportionment  seems 
rather  the  result  of  the  process  of  sub-infeudation.  The 
great  landowner  whose  wide  estates  oblige  him  to  furnish  a 
large  body  of  knights  parcels  out  the  duty  among  his 
followers,  definitely  providing  that  A  or  B  shall  hold  this 
parcel  of  land,  by  the  service  of  one  knight  or  of  three  knights. 
The  system  seems  hardly  to  have  been  worked  into  perfect 
detail  until  the  feudal  array  was  already  losing  some  of 
its  importance.  The  imposition  of  scutage  in  the  reign  of 
Henry  II,  the  commutation  of  military  service  for  money  pay- 
ment, makes  every  particular  definite  ;  the  obligation  can  now 
be  expressed  in  terms  of  pounds,  shillings  and  pence.  This 
district  constitutes  a  knight's  fee ;  this  is  a  fifth  of  a  knight's 
fee ;  when  the  scutage  is  two  marks  on  a  knight's  fee  this  land 
pays  two  shillings,  and  so  forth.  No  general  plan  is  imposed2. 
As  regards  what  are  generally  called  the  burdens  or  in- 
cidents of  feudal  tenure — here  again  we  ought  not  to  think 
of  William  the  Conqueror  bringing  over  with  him  a  fully 
developed  law.  The  state  of  the  English  law  when  it  becomes 
manifest  in  the  pages  of  Glanvill  and  Bracton  is  the  result 
of  a  slow  process  which  went  on  during  the  eleventh  and 
twelfth  centuries,  and  which  gradually  defined  the  rights  of 
lord  and  tenant.  This  process  one  can  trace  as  regards  each 
separate  burden — relief,  marriage,  wardship,  aids,  scutages,  and 
so  forth.  The  final  result  we  have  already  sketched.  Some  of 
our  ordinary  text-books  encourage  the  notion  that  originally 
the  English  feudatories  were  merely  tenants  for  life,  but 
that  in  course  of  time,  to  use  the  common  phrase,  *  fiefs 
became  hereditary/  Now  it  is  perfectly  true  that  long  ago 
such  a  process  as  this  had  gone  on  abroad.  The  beneficium 
or  feodtim  as  it  came  to  be  called,  was,  to  start  with,  only  a  life 
estate ;  but  already  in  the  ninth  century  the  claim  of  the 
heir  to  inherit  or  take  up  his  father's  fief  had  been  gener- 
ally admitted.  There  seems  no  doubt  whatever  that  when 
the  Conqueror  gave  English  land  to  one  of  his  great  followers, 

1  Constitutional  History,  vol.  I,  §  96.  The  number  of  knights  does  not  seem 
to  have  borne  any  close  relation  to  the  size  of  the  tenant's  estate.  Round,  Feudal 
England*  p.  347  ff. 

a  For  Maitland's  developed  views  on  scutage  see  History  of  English  Law, 
vol.  I,  pp.  266 — 71,  where  it  is  proved  that  the  tenant  in  chief  could  not  commute 
his  service. 


I  Reliefs  and  Inheritance  159 

the  gift  was  in  terms  the  gift  of  an  hereditary  estate — a  gift  to 
the  donee  and  his  heirs.  Still  doubtless  the  past  history  of 
the  beneficium  clung  about  the  gift.  The  heir's  claim,  though 
an  admitted  claim,  was  still  rather  a  claim  to  be  placed  in  his 
ancestor's  position,  than  a  claim  that  by  mere  death  and 
inheritance  he  was  already  in  that  position.  He  had  a  right 
to  have  the  land,  but  the  land  was  not  as  yet  quite  his.  He 
must  do  homage  and  swear  fealty  ;  what  is  more,  money  may 
be  expected  of  him  if  he  is  to  fill  the  position  of  his  ancestor. 
There  is  still  something  of  grace  and  favour  in  letting  him 
hold  what  his  father  held.  We  know  little  of  what  was  the 
practice  of  the  Conqueror  himself;  but  it  is  plain  that  William 
Rufus  would  have  liked  to  treat  the  feudatories  as  mere  life 
tenants,  to  have  insisted  that  the  heir  must  repurchase  the 
father's  land,  even  that  the  new  bishop  or  abbot  must  repur- 
chase the  land  held  by  his  predecessor.  He  wished,  we  are 
told,  to  be  the  heir  of  every  man  in  England.  His  demands, 
however,  were  clearly  regarded  as  oppressive  and  illegal. 
Henry  I  on  his  succession  to  the  throne  found  it  necessary 
to  renounce  the  evil  customs  of  his  brother.  The  coronation 
charter  in  which  he  did  this  is  one  of  the  main  landmarks 
in  the  history  of  English  feudalism — even  in  the  history  of 
England.  Thus  in  particular  we  have  this  clause:  'If  any 
of  my  earls,  barons  or  other  tenants  shall  die,  his  heir  shall 
not  redeem  (redimet,  buy  back)  his  land,  but  shall  relieve 
it  (take  up  the  inheritance)  by  a  just  and  lawful  relief/  This, 
you  will  see,  on  the  one  hand  declares  in  an  emphatic  way 
that  fo  s  are  hereditary,  while  on  the  other  hand  it  declares 
no  br,  emphatically  that  a  relief  is  due.  The  amount,  how- 
ever, is  not  fixed.  It  is  to  be  remembered  that  something  like 
the  relief  had  been  paid  in  England  before  the  Norman  Con- 
quest— namely  the  heriot— and  though  (as  I  have  already  said) 
the  heriot  had  originally  been  of  a  different  nature  (the  return 
of  the  thegn's  military  equipment  to  the  lord  who  provides  it) 
it  had  come  to  look  much  like  the  foreign  relief.  The  thegn 
had  become  a  landowner;  bound  by  special  obligation  to  serve 
the  king ;  on  his  death  arms  and  money  were  rendered  to  the 
king: — a  Norman  accustomed  to  the  beneficiary  system  would 
see  here  a  relief.  It  is  now  very  generally  supposed  that 


160  Constitutional  History  PERIOD 

Ranulf  Flambard,  the  minister  of  William  Rufus  (of  whose 
doings  the  contemporary  chroniclers  complain  very  bitterly), 
had  much  to  do  with  shaping  this  part  of  English  feudalism. 
The  just  and  lawful  reliefs  of  Henry's  charter  may  have  been 
equivalent  to  the  heriots,  a  tariff  of  which  is  given  in  the  laws 
of  Canute.  But  it  took  a  century  and  more  from  the  coronation 
of  Henry  I  to  reduce  the  king's  claims  within  any  very 
definite  bounds.  What  I  have  said  of  reliefs  may  be  said  also 
of  those  extremely  onerous  burdens  which  we  know  as  ward- 
ship and  marriage.  The  Coronation  Charter  of  Henry  I  makes 
large  promises  about  them,  and  lays  down  rules  which  are 
considerably  less  heavy*  on  the  tenants  than  those  which 
ultimately  become  the  rules  of  the  common  law.  From  the 
accession  of  Henry  I  to  the  Magna  Carta  of  1215  these 
matters  are  very  unsettled — the  king  gets  what  he  can,  often 
he  can  get  much.  At  length  the  Great  Charter  wrung  from 
John  sets  precise  bounds  to  his  rights,  though  as  a  matter  of 
fact  another  half  century  goes  by  before  the  charter  is  very 
carefully  observed,  and  even  the  Great  Charter  is  not  in  all 
respects  so  favourable  to  the  tenants  as  is  the  charter  of 
Henry  I :  this  in  particular  is  the  case  as  regards  wardship 
and  marriage — the  king's  rights  as  ultimately  fixed  are,  to  say 
the  least,  very  ample. 

What  has  been  said  of  the  king  and  his  tenants  in  chief 
is  true  also  of  the  barons  and  their  tenants.  Henry  I  at  the 
opening  of  his  reign  was  compelled  to  throw  himself  on  the 
whole  nation  for  its  support.  His  charter  carefully  stipulates 
that  his  behaviour  to  his  tenants  is  to  be  the  model  ;  *r  their 
behaviour  to  their  tenants.  They  are  to  take  no  m(fea  than 
a  just  and  lawful  relief,  and  are  to  be  content  with  such  rights 
of  wardship  and  marriage  as  suffice  for  the  king.  The  rising, 
again,  which  won  the  charter  of  1215,  was  distinctly  a  national 
rising,  and  the  rights  which  were  secured  to  the  tenants  in 
chief  as  against  the  king,  were  secured  as  against  them  for 
their  tenants.  The  period  from  1066  to  1215  we  may  regard 
as  the  age  during  which  the  feudal  burdens  are  defined,  partly 
by  charters  obtained  from  the  king,  partly  by  the  practice  of 
the  king's  exchequer,  which  gradually  develops  into  a  regular 
routine;  but  many  points  are  unsettled,  the  king  will  take 


I  Limitations  to  Feudalism  161 

what  he  can  get,  his  tenants  will  pay  as  little  as  possible- 
will  now  and  then  revolt.  In  Glanvill's  time,  to  give  one 
example,  the  relief  due  from  a  knight's  fee  was  fixed  at  100 
shillings;  for  socage  land,  one  year's  rent.  He  goes  on  to 
say  that  as  to  baronies  no  certain  rule  has  been  laid  down,  for 
baronies  are  relieved  juxta  voluntatem  et  misericordiam  domini 
regis\ 

Let  us  now  recount  the  limitations  which  are  set  in  this 
country  to  the  development  of  what  can  properly  be  called 
a  feudal  system. 

(1)  First  and  foremost,  it  never  becomes  law  that  there  is 
no  political  bond    between    men   save   the   bond  of  tenure. 
William  himself  seems  to  have  seen  the  danger.     We  read 
that  in  1086  he  came  to  Salisbury,  'and  there  came  to  him 
his  witan  and  all  the  landowning  mWi  that  were  worth  aught 
from  over  all  England,  whosesoever  naen  they  were,  and  all 
bowed  themselves  down  to  him   and  became  his  men,  and 
swore  oaths  of  fealty  to  him  that  they  wduld  be  faithful  to 
him  against  all  other  men/    He  exacted  an  oath  of  fealty  not 
merely  from  his  own  tenants,  but  from  all  the  possessors  of 
land,   no   matter  whose  men  they  were  ;    they  were  to   be 
faithful  to  him  against  all  other  men,  even  against  their  lords. 
This  became  fundamental  law :  we  have  before  this  seen  its 
result;  whenever  homage  or  fealty  was  done  to  any  mesne 
lord,  the  tenant  expressly  saved  the  faith  that  he  owed  to  his 
lord  the  king.    The  oath  of  allegiance  we  find  is  exacted  from 
all  men ;  this  exaction  becomes  part  of  the  regular  business  of 
the  local  courts. 

(2)  English  law  never  recognizes  that  any  man  is  bound 
to  fighter  his  lord.     The  sub-tenant  who  holds  by  military 
service  is  bound. by  his  tenure  to _  fight  for Jthe, king;  he  is 
bound  to  follow  his  lord's  banner,  but  only  in  the  national 
army: — he  is  in  nowise  bound  to  espouse  his  lord's  quarrels, 
least  of  all  his  quarrels  with  the  king.     Private  war  never 
becomes   legal ;   it   is  a  crime  and  a  breach  of  the  peace. 
Certainly  there  was  a  great  deal  of  private  war;  certainly  men 
felt  it  their  duty  to  follow  their  lord  against  his  enemies,  even 

*  Select  Charters^  p.  163, 
M.  II 


1 62  Constitutional  History  PERIOD 

against  the  king;  but  this  duty  never  succeeds  in  getting 
itself  acknowledged  as  a  legal  duty.  If  that  seems  to  you  too 
natural  to  be  worth  mentioning,  you  should  look  at  the  history 
of  France;  there  it  was  definitely  regarded  as  law  that  in 
a  just  quarrel  the  vassal  must  follow  his  immediate  lord,  even 
against  the  king.  . 

(3)  Though  the  military  tenures  supply  the  king  with  an 
army,  it  never  becomes  law  that  those  who  are  not  bound  by 
tenure  need  not  fight.    The  old  national,  force*,  officered ~by 
the  sheriffs,  does  not  cease  to  exist     Rufus  had  called  it  out 
for  compulsory  service;  more  than  once  it  was  called  out 
against  the  Scots;   in  1181   Henry  II  reorganized  it  by  his 
Assize  of  Arms ;  it  was  reorganized  again  under  Edward  I 
by  the  Statute  of  Winchester  in  1285  ;  it  is  the  militia  of  later 
days.     Every  man  is  bound  to  have   arms  suitable  to  his 
degree,  down  to  the  man  who  need  but  have  bow  and  arrows. 
In  this  organization  of  the  common  folk  under  royal  officers, 
there  is  all  along  a  counterpoise  to  the  military  system  of 
feudalism,  and  it  serves  the  king  well.     The  great  families  of 
the  Conquest  are  at  length  pulverized  between  the  hammer  of 
the  king  and  the  anvil  of  the  people. 

(4)  Taxation  is  not  feudalized.     The  king  for  a  while  is 
strong  enough  to  tax  the  nation,  to  tax  the  sub-tenants,  to 
get  straight  at  the  mass  of  the  people,  their  lands  and  their 
goods,  without  the  intervention  of  their  lords.     When  the 
time  for  putting  a  restraint  upon  his  power  comes,  it  is  only 
for  a  brief  while,  if  ever,  the  restraint  of  a  purely  feudal 
assembly  of  tenants  in  chief.    The  ting  deals  with  the  smaller 
landowners  in  the  county  court,  until  at  last  the  county  court 
is  represented  at  Westminster  by  knights  of  the  shire.     On 
the  other  hand,  the  king  relying  on  the  nation  is  strong  enough 
to  insist  that  the  lords  shall  not  tax  their  tenants  without  his 
consent. 

(5)  The   administration  of  justice  is  never  completely 
feudalizgsL    The  old  local  courts  are  kept  alive,  and  are  not 
^uHaTassemblies.    The  jurisdiction  of  the  feudal  courts  is 
strictly  limited ;  criminal  jurisdiction  they  have  none  save  by 
express  royal  grant,  and  the  kings  are  on  the  whole  chary  of 
making  such  grants.     Seldom,  indeed,  can  any  lord  exercise 


I  Feudalism  real  and  ideal  163 

more  than  what  on  the  continent  would  have  been  considered 
justice  of  a  very  low  degree.  The  two  counties  palatine  are 
exceptions;  but  one  of  these,  Durham,  is  in  the  hands  of 
a  bishop,  and  the  appointment  of  bishops  is  practically  in  the 
king's  hands.  As  to  Chester,  our  best  representative  of  real 
feudalism;  about  the  middle  of  the  thirteenth  century  a  series 
of  lucky  accidents  brings  the  earldom  into  the  king's  own 
hands.  The  king  again,  as  we  have  seen,  rapidly  extends  the 
sphere  of  his  own  justice :  before  the  middle  of  the  thirteenth 
century  his  courts  have  practically  become  courts  of  first 
instance  for  the  whole  realm — from  Henry  II's  day  his 
itinerant  justices  have  been  carrying  a  common  law  through 
the  land. 

(6)  .The  Curia  Regis>  which  is  to  become  the  commune 
concilium  regni,  never  takes  very  definitely  a  feudal  shape,. 
The  body  of  tenants  in  chief  is  too  large,  too  heterogeneous  for 
that.  It  is  much  in  the  king's  power  to  summon  whom  he 
will,  to  take  the  advice  of  whom  he  will.  The  tradition  of 
a  council  of  witan  is  not  lost.  Only  slowly  does  a  body  of 
barons,  or  major  barons,  separate  itself  from  the  larger  body 
of  tenants  in  chief,  and  it  long  remains  in  the  king's  power 
to  decide  who  these  major  barons  are,  who  shall  be  summoned 
by  name  to  his  councils.  .  The  residue  of  the  tenants  in  chief 
is  not  keen  about  going  to  court ;  gradually  it  is  lost  in  the 
body  of  freeholders.  When  the  time  for  a  representative 
parliament  has  come,  the  smaller  tenants  in  chief  are  mixed 
with  their  own  sub-vassals,  and  the  bodies  which  are  repre- 
sented by  the  knights  of  the  shire  are  the  county  courts 
in  which  all  freeholders  find  a  place.  The  model  parliament 
of  1295  follows  closely  on  the  great  statute  of  1290  (jQuia 
Emptores),  which  puts  a  stop  to  subinfeudation,  and  vastly 
diminishes  the  public  importance  of  tenure. 

Speaking  generally  then,  that  ideal  feudalism  of  which  we, 
have  spoken,  an  ideal  which  was  pretty  completely  realized  ir 
France  during  the  tenth,  eleventh  and  twelfth  centuries,  wad 
neyer^  realized  inJEngland.  Owing  to  the  Norman  Conquest 
one  part  of  the  theory  was  carried  out  in  this  country  with 
consistent  and  unexampled  rigour;  every  square  inch  of  land 
was  brought  within  the  theory  of  tenure:  English  real  property 

II — 2 


164  * Constitutional  History        PERIOD  I 

f  law  becomes  a  law  of  feudal  tenures.  In  France,  in  Germany, 
allodial  owners  might  be  found :  not  one  in  England.  Also 
the  burdens  of  tenure  were  heavier  here  than  elsewhere ;  the 
doctrines  of  wardship  and  marriage  were,  I  believe,  severer 
here  than  in  any  other  country  in  Europe.  On  the  other  hand 
our  public  law  does  not  become  feudal ;  in  every  direction 
the  force  of  feudalism  is  limited  and  checked  by  other  ideas ; 
the  public  rights,  the  public  duties  of  the  Englishman  are  not 
conceived  and  cannot  be  conceived  as  the  mere  outcome  of 
feudal  compacts  between  man  and  lord. 


PERIOD    II. 

PUBLIC  LAW  AT  THE  DEATH  OF  HENRY  VII. 

v* 

IT  may  seem  strange  to  you  that  I  should  choose  the  year 
1509  as  our  next  point  of  view.  Certainly  it  would  be  more 
in  accordance  with  tradition  were  we  to  pause  at  1399,  the 
deposition  of  Richard  II,  the  accession  of  the  House  of 
Lancaster;  again  at  1461,  the  accession  of  the  House  of  York, 
and  again  at  1485,  the  accession  of  the  House  of  Tudor.  But 
for  one  thing  our  time  is  short.  In  the  second  place  it  is 
well  to  break  with  tradition  even  though  that  tradition  be 
reasonable  ;  we  ought  to  accustom  ourselves  to  review  our 
constitution  from  many  different  points  of  view,  and  I  do  not 
wish  to  repeat  exactly  what  is  in  the  books  that  you  ought  to 
read.  In  the  third  place  a  moment  of  crisis,  when,  so  to  speak, 
our  constitution  is  thrown  out  of  gear,  does  not  seem  the  best 
moment  at  which  to  halt  in  order  that  we  may  inquire  what 
the  constitution  is, — the  end  of  the  four  and  twenty  peaceful 
years  during  which  Henry  VII  governed  England  seems  to 
me  a  time  at  which  we  may  profitably  place  ourselves  in 
order  to  survey  the  permanent  results  of  the  eventful  two 
centuries  which  have  elapsed  since  the  death  of  Edward  I. 
The  internal  English  history  of  these  two  centuries  is  very 
largely  a  history  of  the  relation  between  king  and  parliament; 
that  relation  has  varied  very  much  from  time  to  time,  it  has 
varied  with  the  character  of  the  kings,  the  character  of  the 
parliaments,  it  has  been  affected  by  foreign  wars  and  by  civil 
wars;  still  there  is  a  certain  permanent  outcome, a  constitution, 
a  body  of  public  law.  Our  first  duty  must  be  to  consider 
what  a  parliament  is. 


1 66  Constitutional  History  PERIOD 

A.    Parliament. 

I.     Its  Constitution. 

We  find  that  the  great  precedent  of  1295  has  been 
followed,  that  assemblies  modelled  on  the  assembly  of  that 
year  have  been  constantly  holden,  that  these  have  quite 
definitely  acquired  the  name  of  parliaments.  Parliament  is 
still,  at  least  in  theory,  an  assembly  of  the  three  estates ;  we 
must  examine  its  component  parts. 

(i)     The  Clergy. 

In  the  first  place  the  two  archbishops  and  the  eighteen 
bishops  are  there,  and  as  of  old  it  may  still  be  questioned 
whether  they  are  there  as  holding  baronies  or  as  the  heads 
of  the  national  church.  The  number  of  abbots  has  sunk  to 
27;  in  1305  it  was  as  high  as  75;  but  the  abbots  have 
insisted  that  unless  they  hold  territorial  baronies  they  are 
not  bound  to  attend;  they  have  cared  little  for  national 
politics;  no  abbot  has  made  himself  conspicuous  as  a  states- 
man; in  1509  their  doom  is  at  hand.  The  inferior  clergy  are 
summoned  by  means  of  the  praemunientes  clause ;  but  they 
have  systematically  refrained  from  attending;  they  have 
preferred  to  vote  their  taxes  in  their  convocations.  In  time 
their  attendance  has  been  required  for  the  same  purpose  as 
that  of  the  commons;  they  have  been  told  to  come  ad 
faciendum  et  consentiendum\  this  was  the  form  down  to 
1340;  gradually  it  was  supplanted  by  ad  consentiendum, 
which  in  1377  became  the  invariable  form:  a  consent  to 
legislation  might  be  given  by  silence.  We  know  that  the 
clerical  proctors  did  occasionally  attend  throughout  the  four- 
teenth century,  but  even  when  they  appeared  they  apparently 
took  but  little  part  in  the  proceedings  of  the  parliament 

(ii)      The  Lords  Temporal. 

The  lords  temporal  are  now  divided  into  various  ranks. 
In  1307  we  had  only  to  speak  of  earls  and  barons;  but 
now  above  the  earls  there  are  marquesses  and  dukes,  and 
between  the  earls  and  barons  there  are  viscounts.  The  first 
English  dukedom  was  created  in  1337,  when  Edward  III 
gave  that  dignity  to  the  king's  eldest  son  ;  the  dukedoms  of 
Lancaster,  Clarence,  Gloucester  and  York  were  bestowed 


II  The  Lords  Temporal  167 

upon  members  of  the  royal  house,  and  in  1397  Richard  II 
gave  dukedoms  to  some  who  were  not  members  of  that  house. 
He  also  made  our  first  marquess,  Robert  de  Vere,  marquess 
of  Dublin.  The  title  of  viscount  was  not  given  until  the 
fifteenth  century.  These  titles  were  imported  from  abroad. 
They  were  at  first  used  in  order  to  give  some  nobleman  a 
precedence  over  his  fellows.  They  have  never  given  more 
than  this,  and  have  been  legally  unimportant.  They  never 
implied  any  territorial  power  or  jurisdiction  over  the  place 
whence  the  title  was  derived.  Even  the  old  title  of  earl 
though  always  taken  from  a  county  or  county  town  had  long 
ceased  to  imply  anything  of  the  sort.  The  creation  of  these 
new  dignities  had,  however,  an  important  effect  on  the  usual 
mode  of  creating  peers.  The  dukes,  marquesses  and  so  forth 
were  created  by  patent,  that  is,  by  letters  under  the  great  seal 
definitely  giving  this  rank  to  them  and  their  heirs.  Hitherto, 
as  we  have  seen,  barons  had  not  been  created  in  this  way,  the 
writ  summoning  him  or  his  ancestors  to  a  parliament  was  all 
that  the  baron  could  show.  In  1387  Richard  II  created  a 
baron  by  patent :  this  example  was  occasionally  followed,  and 
from  1446  onwards  was  regularly  followed.  We  thus  get  to 
the  law  of  our  own  day,  that  a  peerage  must  be  created  in  one 
of  two  ways,  either  by  writ  of  summons  or  by  letters  patent, 
and  it  may  save  repetition  hereafter  if  we  now  trace  this 
matter  to  an  end. 

Since  the  fifteenth  century  a  patent  has  been  the  regular 
means  of  creating  a  new  peerage :  it  is  now  the  means  in- 
variably used.  Such  a  patent  usually  confers  the  peerage, 
barony,  earldom,  dukedom,  or  whatever  it  be  upon  a  man 
and  the  heirs  male  of  his  body.  The  House  of  Lords  in 
1856  advised  the  crown  that  a  patent  which  gave  no  more 
than  a  peerage  for  life  would  not  entitle  the  grantee  to  be 
summoned  to  parliament.  A  peerage  created  by  patent  must 
be  descendible,  inheritable:  at  this  moment  I  can  say  no 
more,  because  to  go  further  would  be  to  enter  the  domain  of 
real  property  law ;  but  you  will  read  more  of  it  in  Sir  William 
Anson's  book1.  I  believe  that  it  must  be  admitted  that  as  a 
matter  of  fact  ever  since  the  practice  of  creating  peers  by 

1  Law  and  Custom  of  the  Constitution.     Parliament  c.  vi. 


1 68  Constitutional  History  PERIOD 

patent  had  been  in  use  no  distinct  precedent  could  be  found 
for  an  attempt  to  make  a  man  a  peer  without  giving  him  an 
inheritable  right;  the  decision  of  1856  in  the  Wensleydale 
peerage  case  was  to  the  effect  that  this  practice  had  begotten 
a  rule  of  law.  But  secondly  I  may  claim  a  peerage  and  a 
right  to  be  summoned  on  the  mere  ground  that  an  ancestor 
of  mine,  whose  heir  I  am,  was  once  summoned  and  took  his 
seat.  It  is  held  that  a  mere  writ  of  summons  directed  to 
A.B.,  if  obeyed  by  him,  confers  on  him  a  right  descendible 
to  his  heirs.  Whether  the  kings  of  the  thirteenth  and  four- 
teenth centuries  meant  that  this  should  be  so,  may  well  be 
doubted,  but  on  the  whole  the  practice  of  summoning  the 
heir  was  regularly  observed,  and  in  the  sixteenth  century  the 
rule  that  summons  and  sitting  gives  a  descendible  right  was 
regarded  as  fixed.  A  peerage  may  descend  to  a  woman, 
although  in  modern  tinies  the  patent  usually  prevents  this  by 
mentioning  the  heirs  male  of  the  body,  or  the  king  can  confer 
a  peerage  upon  a  woman.  Thus  a  woman  may  be  a  peeress 
in  her  own  right  No  woman  however  has  ever^  §ays  Dr  Stubbs, 
sat  in  a  full  and  proper  parliament.  The  nearest  approach 
to  such  a  summons  is  that  of  four  abbesses  who  in  1306  were 
cited  to  a  great  council  held  to  grant  an  aid  on  the  knighting 
of  the  Prince  of  Wales. 

We  have  before  referred  to  the  complicated  question  of 
barony  by  tenure.  In  1509  the  problem  had  not  yet  presented 
itself  in  any  very  definite  shape.  There  can  be  no  doubt  that 
it  was  the  general  impression  among  both  lawyers  and  others 
that  the  right  to  the  writ  of  summons  was  in  many  cases  still 
annexed  to  the  holding  of  certain  lands  forming  a  barony. 
Such  land  baronies  however  were  so  seldom  alienated  that 
the  question  had  hardly  arisen  whether  the  alienee  or  the 
alienor's  heir,, would  have  the  better  right  to  the  summons. 
Freehold  lands,  we  must  remember,  could  not  as  yet  be  given 
by  will.  As  lands  became  more  easily  alienable  the  question 
was  forced  to  the  front  and  the  decision  was  that  the  right  to 
the  summons  was  not  annexed  to  the  property  in  the  land, 
and  consequently  could  not  be  alienated. 

Even  when  some  definite  rules  as  to  the  right  to  a 
summons  were  being  evolved,  the  number  of  lords  summoned 


II  Peerage  169 

varied  greatly  owing  to  minorities,  attainders,  extinction  of 
baronies  and  similar  causes.  Under  Henry  IV  the  number 
never  exceeded  50,  under  Henry  V  it  only  once  reached 
40,  under  Henry  VI  it  fell  as  low  as  23  and  reached  55, 
under  Edward  IV  50  was  the  maximum.  The  Wars  of  the 
Roses  thinned  the  baronage,  but  not  so  much  as  is  often 
supposed ;  only  29  lay  peers  were  summoned  to  the  first 
parliament  of  Henry  VII,  but  in  a  few  years  the  number 
again  reached  40,  though  only  five  new  peerages  were  created. 
It  is  well  to  remember  this,  for  we  are  too  apt  to  think  of 
the  House  of  Lords  as  an  assembly  of  hereditary  nobles. 
Throughout  the  Middle  Ages  the  spiritual  and  non-hereditary 
peers  must  often  have  been  in  a  majority;  even  when  the 
number  of  abbots  had  sunk  to  27  they,  with  the  two  arch- 
bishops and  28  bishops,  could  frequently  have  voted  down 
the  whole  lay  peerage. 

We  have  been  using  the  terms  peers  and  peerage.  These 
terms  but  gradually  came  into  use  during  the  fourteenth 
century.  Originally  of  course  pares  only  meant  equals.  A 
new  significance  is  given  to  the  term  by  a  principle  deeply 
imbedded  in  our  old  law,  namely,  that  a  man  who  is  to 
be  judged,  must  be  judged  by  those  who  are  at  least  his 
equals — the  free  man  is  not  to  be  judged  by  villeins.  Thus 
in  Leg.  Hen.  Prim.  31  §  7,  Unusquisque  per  pares  suos  est 
judicandus1.  So  in  feudal  courts  the  vassal  is  not  to  be  judged 
by  sub-vassals.  Thus  a  man's  pares  came  to  mean  those  who, 
standing  on  the  same  level  with  him,  are  competent  to  be  his 
judges — the  body  of  judges  is  the  pares  curiae,  the  body  of 
peers  which  sits  in  the  court  in  question.  This  principle,  as  we 
all  know,  is  solemnly  sanctioned  by  Magna  Carta:  the  free  man 
is  not  to  be  arrested  no£  imprisoned,  disseised  of  his  freehold, 
nor  in  any  wise  destroyed  :  nisi  per  legale  judicium  parium 
siwriim  vel  per  legem  terrae*.  These  words  are  apparently 
borrowed  from  the  constitutions  of  German  emperors.  Do  not 
be  persuaded  that  they  have  reference  to  trial  by  jury ;  the 
verdict  of  a  jury,  the  testimony  of  a  body  of  neighbour 

1  Select  Charters,  p.  100. 

2  M.  C.  c.  39.     History  of  English  Law,  vol.   I,  pp.  391—4.     McKcchnie, 
PP- 


170  Constitutional  History          PERIOD 

witnesses,  was  in  no  sense  a  judicium.  The  demand  is  of 
a  quite  different  kind;  the  barons  want  a  court  of  their 
equals — they  are  to  be  judged  by  barons.  Theoretically  the 
curia  Regis  had  probably  been  such  a  court;  practically  it 
had  become  something  very  different,  a  tribunal  constituted 
by  a  few  royal  servants,  some  at  least  of  whom  were  not  of 
baronial  rank,  but  were  mere  clerks  and  professional  lawyers. 
The  struggle  of  the  barons  for  kjudicium  parium  is  a  long  one; 
it  can  be  traced  through  the  thirteenth  century  and  in  the  end 
it  is  not  very  successful;  against  it  the  king  opposes  the 
assertion  that  his  justices  are  good  enough  judges  for  any 
man.  Ultimately  it  succeeds  thus  far,  that  the  lords  get  a 
right  to  trial  by  lords  in  case  of  treason  and  felony ;  that  is 
all;  if  they  are  to  be  tried  for  any  lesser  crime,  any  mis- 
demeanour, the  king's  justices  shall  try  them,  and  all  their 
civil  litigation  comes  before  the  king's  justices.  Even  as  to 
treason  and  felony  the  demand  seems  to  have  been  often 
disregarded.  The  modern  principle  that  I  have  just  laid 
down  is  in  truth  a  compromise — only  in  case  of  treason  or 
felony  has  the  peer  any  privilege.  It  seems  to  have  been 
settled  in  the  course  of  the  fourteenth  century.  It  required  a 
statute  of  1422  to  secure  the  same  privilege  for  noblewomen. 
Further,  it  should  be  observed  that  even  in  case  of  felony  or 
treason  there  is  a  distinction — the  peer  accused  of  such  a 
crime  was  tried  by  his  peers  in  parliament,  if  parliament 
were  then  sitting,  and  the  assembled  lords  are  in  such  a  case 
judges  of  both  fact  and  law;  but  if  parliament  were  not 
sitting,  he  was  tried  by  a  select  body  of  peers  chosen  by  the 
Lord  High  Steward,  in  what  came  to  be  called  a  Court  of  the 
Lord  High  Steward.  The  steward's  office  had  at  an  early  time 
become  hereditary  in  the  house  of  Leicester;  it  fell  in  to 
Henry  IV  and  was  merged  in  the  royal  dignity ;  thenceforth 
if  a  steward  was  wanted  for  the  trial  of  a  peer  he  was 
appointed  for  the  occasion  by  the  king ;  he  chose  a  small 
body  Of  lords,  seemingly  23  was  the  usual  number.  In  such 
a  case  the  lords  thus  summoned  were  considered  only  as 
judges  of  fact,  the  Lord  High  Steward  laid  down  the  law.  Not 
until  after  the  Revolution  of  1688  was  it  made  necessary  that 
all  peers  should  be  summoned  to  form  the  High  Steward's 


1 1  Privileges  of  Peerage  1 7 1 

court,  and  then  only  in  case  of  treason.  It  will  probably 
strike  you  that  the  privilege  of  being  tried  by  some  lord 
nominated  for  the  purpose  by  the  king  and  a  small  selection 
of  peers  nominated  by  this  royal  nominee  cannot  have  been 
a  particularly  valuable  privilege,  but  this  is  all  that  the 
baronage  got  with  all  its  strivings1. 

This  privilege,  however,  served  to  define  a  class  of  peers 
or  pares.  It  was  not  the  only  privilege  of  peerage.  The 
peer  enjoyed  a  certain  freedom  from  arrest,  he  could  not  be 
arrested  and  imprisoned  for  debt,  though  he  might  be  arrested 
and  imprisoned  upon  a  charge  of  felony  or  treason.  It  is 
well  to  observe  how  few  were  the  privileges  of  peerage  :  how 
little  of  a  caste  was  our  estate  of  lords  temporal.  It  became 
the  fashion  late  in  the  day  to  talk  of  noble  blood,  of  a  man's 
blood  being  ennobled  when  he  was  called  to  parliament. 
But  this  is  nonsense  unless  it  be  held  that  the  ancestor's 
blood  flows  only  to  his  heir,  and  unless  the  heir  only  begins 
to  have  his  ancestor's  blood  in  his  veins  when  that  ancestor 
dies.  The  sons  and  daughters  of  lords  have  from  the  first 
been  commoners  during  their  father's  lifetime,  and  on  his 
death  only  his  heir  becomes  entitled  to  any  legal  privileges. 
Whatever  social  pre-eminence  the  families  of  peers  may  have, 
has  no  basis  in  our  law :  we  have  never  had  a  noblesse.  It 
has  been  asserted  that  bishops  are  not  entitled  to  demand  a 
trial  by  the  House  of  Lords,  on  the  ground  that  their  blood 
is  not  noble.  T^  House  of  Lords  asserted  this  in  1692,  and 
it  is  a  very  doubtful  question  what  would  now  happen  if  a 
bishop  committed  felony  or  treason ;  but  as  a  matter  of  fact, 
so  soon  as  the  word  'peers'  came  into  use,  the  bishops  were 
regularly  recognized  as  peers  of  the  land,  and  it  is  in  the 
case  of  Archbishop  Stratford  in  1341  that  we  find  the  earliest 
definite  formulation  of  the  principle  that  peers  are  to  be  tried 
in  parliament 

It  is  well  to  remember  that  during  the  Middle  Ages  the 
king  had  considerable  powers  over  the  constitution  of  what 

1  For  further  light  on  this  subject  see  L.  O.  Pike,  Constitutional  History  of 
the  House  of  Lord*)  c.  x  ;  L.  W.  Vernon-Harcourt,  His  Grace  the  Steward  and 
Trial  by  Peers>  and  Law  Quarterly  Review*  vol.  XXiu,  pp.  442—7  and  vol.  xxiv, 
pp.  43-3* 


172  Constitiitional  History  PERIOD 

had  come  to  be  the  upper  House  of  Parliament  As  to  the 
lay  peerage,  even  though  usage  hardening  into  law  may  have 
obliged  him  to  summon  the  heir  of  the  late  baron,  he  had 
a  power,  to  which  the  law  set  no  limit,  of  creating  new  peers. 
This  power  was  not,  I  think,  very  freely  exercised ;  the 
advantage  of  a  picked  House  of  Lords  was  counterbalanced 
by  the  danger  of  creating  new  noble  houses  which  would  be 
dangerous  to  their  creator.  Over  the  spiritual  part  of  the 
peerage  the  royal  power  was  at  least  as  great  The  manner 
in  which  bishops  were  made  had  a  long  and  complicated 
history.  Theoretically  the  bishop  ought  to  have  been  elected 
by  the  cathedral  chapters ;  the  Great  Charter  promised  that 
such  elections  should  be  free ;  practically,  however,  the  making 
of  a  new  bishop  was  an  affair  for  the  king  and  the  pope;  if 
they  worked  together  they  had  their  way;  when  they  quarrelled 
sometimes  one,  sometimes  the  other,  was  successful.  When 
a  see  fell  vacant  the  king  sent  the  chapter  his  licence  to  elect 
(congt  <T£lire\  accompanied  by  a  letter  (letters  recommen- 
datory) nominating  the  person  who  was  to  be  elected.  Under 
Henry  VI,  a  weak  and  pious  king,  the  pope  had  his  own  way ; 
he  provided  bishops,  though  such  provisions  were  contrary  to 
English  Acts  of  Parliament  Under  Henry  VII  the  royal 
nominees  were  invariably  chosen.  As  to  the  abbots  they 
were  elected  by  the  monks,  and  neither  king  nor  pope  often 
interfered  with  the  election.  As  already  said,  the  abbots  play 
no  distinguished  part  in  parliament  or  politics. 

(iii)     The  Commons. 

First  let  us  consider  the  knights  of  the  shire.  There 
are  37  counties  returning  two  members  apiece;  Chester  and 
Durham  are  not  yet  represented.  We  have  seen  that  from 
the  first  the  representatives  were  to  be  elected  in  the  full 
county  court  As  to  the  mode  of  election  during  the  four- 
teenth century  we  know  little  more  than  this;  though  we 
may  gather  from  complaints  of  the  commons  that  often 
enough  the  influence  of  the  sheriff  was  all-powerful.  It  is 
but  gradually  that  the  counties  appreciate  the  privilege 
of  being  represented,  or  that  the  duty  of  representing  the 
county  is  regarded  as  an  honour.  In  1406  (7  Hen.  IV,  c.  15) 


II  Parliamentary  Elections  173 

a  statute  directs  that  the  election  shall  be  made  in  the  first 
county  court  holden  after  the  receipt  of  the  writ ;  it  is  to  be 
made  in  full  county  court  In  1410  (11  Hen.  IV,  c.  i)  the 
conduct  of  elections  is  placed  under  the  cognizance  of  the 
justices  of  assize,  and  a  penalty  of  £100  is  demanded  against 
a  sheriff  who  makes  an  undue  return.  In  1413  (i  Hen.  V,  c.  i) 
residence  within  the  counties  is  made  a  qualification  both 
for  the  electors  and  the  elected.  From  1430  we  have  the 
important  act  (8  Hen.  VI,  c.  7)  which  regulated  the  county 
franchise  for  the  next  four  centuries : — the  electors  are  to  be 
persons  resident  in  the  county,  each  of  whom  shall  have  free- 
hold to  the  value  of  40  shillings  per  annum  at  the  least  above 
all  charges.  The  act  complains  that  elections  have  of  late 
been  made  by  '  very  great,  outrageous,  and  excessive  number 
of  people,  of  which  most  part  was  people  of  small  substance 
and  of  no  value,  whereof  every  of  them  pretended  a  voice 
equivalent  as  to  such  election  with  the,  most  worthy  knights 
and  esquires/  To  start  with,  this  must  have  been  what  would 
in  our  eyes  be  a  fairly  high  qualification :  the  great  change 
in  the  value  of  money  caused  by  the  discovery  of  silver  in 
America  rendered  it  in  course  of  time  very  low  and  very 
capricious;  the  forty  shilling  freeholder  had  a  vote,  the  copy- 
holder,  the  leaseholder,  had  none,  no  matter  how  valuable  his 
land  might  be.  In  1432  another  statute  explains  that  the 
qualifying  freehold  must  be  situate  within  the  county.  The 
king  at  various  times  exercised  a  power  of  inserting  clauses 
in  the  writs  directed  to  the  sheriff  specifying  the  sort  of 
persons  who  were  to  be  chosen — generally  they  were  to  be 
two  knights  girt  with  swords  ;  this  order,  however,  seems  to 
have  been  pretty  generally  disobeyed,  many  of  the  so-called 
knights  of  the  shire  were  not  knights — in  1445  it  is  con- 
sidered sufficient  that  they  should  be  knights  of  the  shire  or 
notable  squires,  gentlemen  of  birth,  capable  of  becoming 
knights ;  no  man  of  the  degree  of  yeoman  or  below  it  is  to 
be  elected. 

The  number  of  knights  of  the  shire  was,  we  have  seen, 
constant,  that  of  the  citizens  and  burgesses  fluctuated,  diminish- 
ing pretty  steadily  as  time  went  on.  For  the  maximum  number 
of  the  boroughs  represented  we  must  go  back  to  Edward  I 


174  Constitutional  History  PERIOD 

when  1 66  was  reached ;  during  the  first  half  of  the  fifteenth 
century  it  had  fallen  to  99.  After  1445  it  begins  to  increase 
a  little,  Henry  VI  added  8  new  boroughs,  Edward  IV  added 
or  restored  5.  It  should  be  remarked  that  during  the  Middle 
Ages  no  writ  was  sent  to  the  boroughs — the  writ  went  to  the 
sheriff  of  the  county,  commanding  him  to  return  two  knights 
from  his  shire,  two  citizens  from  every  city,  two  burgesses 
from  every  borough.  It  was  much  in  his  power  therefore  to 
decide  what  towns  should  be  represented.  The  towns  very 
often  desired  not  to  be  represented.  According  to  the  regular 
practice  a  borough  was  taxed  at  a  heavier  rate  than  the  shire 
— thus  when  a  fifteenth  was  laid  on  the  counties,  a  tenth  was 
laid  on  the  boroughs ;  also  if  a  borough  sent  burgesses  to 
parliament  it  had  to  pay  their  wages.  In  one  case,  that  of 
Torrington,  in  1368,  we  find  a  borough  successfully  petitioning 
the  king  that  it  mayynot  be  compelled  to  send  members. 
It  is  very  probable  £nat  other  boroughs  effected  the  same 
object  by  negotiations  with  the  sheriff.  A  statute  of  1382 
(5  Ric.  II,  c.  4)  denounces  a  punishment  against  the  sheriff  if 
he  omits  boroughs  which  have  heretofore  sent  members. 
During  the  fifteenth  century  the  privilege  of  being  represented 
seems  to  have  been  a  little  more  highly  prized.  We  find  the 
king  conferring  the  right  to  send  members  upon  new  boroughs, 
or  restoring  it  to  boroughs  which  have  been  represented  in 
former  times.  This  power  made  it  possible  for  the  king  to 
pack  the  House  of  Commons ;  but  we  do  not  find  it  liberally 
exercised  until  the  reign  of  Mary.  The  first  House  of 
Commons  of  Henry  VIII  consisted  of  298  members — 74 
members  for  the  shires,  224  for  the  cities  and  boroughs.  The 
number  of  borough  members  had  largely  exceeded  that  of  the 
knights  of  the  shire,  nevertheless  through  the  Middle  Ages  it 
is  the  knights  of  the  shire  who  are  the  most  active  and 
independent  element  in  the  parliament;  every  movement 
proceeds  from  them — to  them  it  is  due  that  the  House  of 
Commons  takes  its  place  beside  the  House  of  Lords. 

As  to  the  qualification  of  electors  in  the  boroughs,  we 
have  seen  that  from  the  first  it  had  varied  from  borough  to 
borough.  Lapse  of  time  had  done  nothing  to  make  it  more 
uniform;  quite  the  reverse,  no  general  law  was  made  and 


II       -        Separation  of  the  Houses  175 

each  borough  was  left  to  work  out  its  own  destiny  by  the  aid 
of  charters  purchased  from  the  king.  The  only  general 
principle  that  can  be  laid  down  is  this,  that  the  later  the 
charter  the  more  oligarchic  is  the  constitution  of  the  borough. 
A  few  towns  acquired  the  right  of  being  counties  of  them- 
selves, of  having  their  own  sheriffs,  and  being  exempt  from 
the  powers  of  the  sheriff  of  the  surrounding  county.  London 
had  acquired  this  privilege  under  Henry  I — no  other  town 
succeeded  in  getting  it  until  Bristol  became  a  county  in  1373. 
York  followed  in  1396  and  then  Newcastle,  Norwich,  Lincoln, 
Hull,  Southampton,  Nottingham,  Coventry,  Canterbury.  In 
such  cases  the  writs  were  sent  to  the  sheriffs  of  these  counties 
corporate  and  in  some  of  them  the  county  qualification,  the 
forty  shilling  freehold,  was  adopted  as  the  qualification  for  the 
electors.  In  other  boroughs  the  qualification  varies  between 
a  wide  democracy  and  the  narrowest  oligarchy. 

Long  ago  parliament  had  taken  the  shape  familiar  to  us, 
an  assembly  consisting  of  two  houses  which  sit,  debate,  and 
vote  apart — the  one  containing  the  lords,  spiritual  and  tem- 
poral, the  other  all  the  representatives  of  the  commons.  How 
high  this  separation  can  be  traced  has  been  disputed;  there 
is  no  doubt  that  we  can  carry  it  back  to  the  middle  of  the 
fourteenth  century: — as  regards  the  preceding  half  century 
there  is  some  doubt,  but  Stubbs  holds  that  very  probably 
from  the  very  first  moment  the  lords  and  commons  sat  apart. 
In  the  later  Middle  Ages  they  certainly  sat  in  separate  build- 
ings, the  lords  in  the  Parliament  Chamber  of  the  king's  palace, 
the  commons  generally  in  the  Chapter  House  or  the  Refectory 
of  the  Abbey  of  Westminster.  Westminster  had  long  ago 
become  the  usual  seat  of  parliament,  though  during  the  four- 
teenth and  fifteenth  centuries  there  were  a  not  inconsiderable 
number  of  sessions  at  York  and  other  towns ;  it  was  for  the 
king  to  decide  when  and  whether  he  would  summon  a  parlia- 
ment. It  is  a  noticeable  fact  that  at  a  very  early  time, 
perhaps  from  the  very  beginning,  the  citizens  and  burgesses 
sit  together  with  the  knights;  there  seems  certainly  for  a 
long  while  a  feeling  that  as  it  is  for  the  barons  to  tax  them- 
selves, and  for  the  clergy  to  tax  themselves,  so  the  boroughs 
should  be  taxed  by  burgesses  and  the  county  by  knights  of 


176  Constitutional  History  PERIOD 

the  shire ;  and  as  a  matter  of  fact  the  boroughs  and  counties 
are  usually  taxed  at  different  rates — a  loth  is  imposed  on 
boroughs,  a  I5th  on  counties:  nevertheless  we  soon  find  that 
the  two  sets  of  representatives  act  together — they  are  regarded 
as  representing  but  one  estate  of  men,  the  commons  of  the 
realm. 

The  members  of  the  common's  house  were  paid  wages  by 
their  constituents;  the  knights  of  the  shire  received  four 
shillings  a  day,  the  burgesses  two  shillings ;  in  1427  we  find 
the  townsmen  of  Cambridge  making  an  agreement  with  their 
members  to  take  one  shilling. 

It  is  worth  looking  at  the  words  of  the  writs  whereby  a 
parliament  is  summoned ;  they  bring  out  the  fact  that  the 
two  houses  had  not  originally  been  co-ordinate  assemblies; 
a  lord  is  told  that  the  king  intends  to  hold  a  parliament  at  a 
certain  place  and  tinfce,  et  ibidem  vobiscum  et  cum  ceteris 
prelattS)  magnatibus,  $t  proceribus  regni  nostri  colloquium  habere 
et  tractatum ;  he  is  then  enjoined,  in  fide  et  ligeancia  quibus 
nobis  tenemini,  if  he  be  a  temporal  lord,  in  fide  et  dilectione, 
if  a  spiritual  lorA  to  be  present  cum  praelatis^  magnatibusy  et 
proceribus  praedictis  simper  praedictis  negotiis  tractaturi^  vestrum- 
que  consilium  impensiirL  A  writ  to  a  judge  or  to  another 
councillor  who  is  not  a  peer  omits  the  word  ceteris — he  is  not 
one  of  the  magnates  or  proceres  of  the  kingdom,  and  the 
opinion  is  growing,  as  we  have  before  said,  that  he  had  no 
vote,  and  indeed  no  voice  in  debate,  but  is  simply  to  give  his 
advice  if  that  is  wanted.  Bu-t  the  function  of  the  lords  as 
distinguished  from  that  of  the  commons  is  marked  by  the 
words  tractaturi  vestrumque  consilium  impenstiri ;  they  are  to 
treat  with  the  king  and  give  their  counsel.  The  writ  to  the 
sheriff  recites  the  king's  intention  of  treating  with  the  lords, 
\hzprelati,  magnates,  and  proceres^  and  then  directs  the  election 
of  knights,  citizens  and  burgesses  who  are  to  have  power  on 
behalf  of  their  constituencies,  coun*^,  cities,  boroughs,  to 
consent  to  and  to  do  what  may  be  determined  by  the 
•common  counsel  of  the  kingdom — ad  faciendum  et  consentien- 
dum  hiis  quae  tune  ibidem  de  communi  consilio  regni  nostri 
favente  domino  ordinari  contigerit  super  negotiis  antedictis. 
They  are  not  to  treat  with  the  king ;  it  is  not  their  counsel 


II  Frequency  of  Parliaments  177 

that  the  king  wants,  it  is  their  consent — an  active  consent 
which  shall  be  extended  to  doing  (ad  faciendum)  what  shall 
be  determined  by  the  common  counsel  of  the  kingdom.  As 
to  the  clergy,  we  have  already  seen  that  from  the  time  of 
Richard  II  onwards  the  word  faciendum  drops  out  of  the 
praemunientes  clause — they  will  not  come  to  parliament — 
their  absence  will  be  consent  enough. 


II.     Frequency  and  Duration  of  Parliament. 

Such  then  is  a  parliament : — but  how  far  is  it  necessary 
that  there  should  be  parliaments,  and  have  parliaments  been 
frequently  and  regularly  holden  ?  The  question  of  law  is 
intimately  connected  with  the  question  of  fact.  Starting  with 
the  assembly  of  1295  parliaments  soor  become  very  frequent 
Already  in  1311  one  of  the  ordinances  decreed  that  there 
should  be  a  parliament  twice  in  every  year;  but  this  was  part 
of  a  baronial  scheme  and  it  may  be  doubted  whether  more 
than  an  assembly  of  barons  was  desired  ;  but  when  in  1322 
Edward  II  had  succeeded  in  casting  off  the  yoke  of  the 
baronial  ordainers,  the  ordinances  were  repealed  on  the  plea 
that  the  consent  of  the  estates  had  not  been  given.  The 
parliament  of  that  year,  1322,  published  the  following  note- 
worthy declaration,  the  first  declaration  we  may  say  of  the 
supremacy  of  a  full  representative  parliament — 'the  matters 
which  are  to  be  established  for  the  estate  of  our  lord  the  king 
and  of  his  heirs,  and  for  the  estate  of  the  realm  and  of  the 
people  shall  be  treated,  accorded  and  established  in  parliament 
by  our  lord  the  king  and  by  the  consent  of  the  prelates,  earls 
and  barons,  and  the  commonalty  of  the  realm,  according  as 
hath  been  heretofore  accustomed/  In  1330  at  the  beginning 
of  the  new  reign  we  have  a  statute  for  annual  parliaments 
(4  Edw.  Ill,  c.  14).  It  is  accorded  that  a  parliament  shall  be 
holden  in  every  year,  or  more  often  if  need  be.  There  can,  I 
think,  be  little  doubt  that  these  words  require  that  there  shall 
be  a  parliament  at  least  in  every  year — if  need  be  parliament 
may  be  held  more  often,  but  at  least  once  a  year  it  must  be 
holden.  The  slight  ambiguity  of  the  phrase  should  be  noticed 
— it  becomes  important  hereafter.  In  1362  (36  Edw.  Ill,  c.  10) 

M.  12 


178  Constitutional  History  PERIOD 

another  statute  ordains  that  'a  parliament  shall  be  holden 
every  year,  as  another  time  was  ordained  by  statute/  These 
provisions  were  fairly  well  kept  for  a  long  while;  but  there 
were  no  parliaments  in  1364,  1367,  1370,  between  1373-6, 
1387,  1389,  1392,  1396,  or  between  1407-10.  On  the  other 
hand  in  a  considerable  number  of  years  there  were  |yvo 
parliaments,  in  1340  there  were  three,  in  1328  fear.  gLv.cn  of 
these  parliaments,  you  should  understand,  v,  as  -,  new  parlia- 
ment, involving  a  new  election.  ,  The  t.jj*^  ¥*vas  not  yet  when 
the  same  parliament  would  be  kept  alive-year  after  year  by 
means  of  prorogations.  The  *(:%uency  of  parliaments,  if 
theoretically  secured  by  the  statutes  just  mentioned,  was 
practically  secured  by  the  king's  need  of  money.  He  was 
coming  to  be  very  dependent  on  supplies  granted  to  him  by 
parliament,  and  seldom  was  a  tax  imposed  for  more  than  a 
single  year.  Under  1/dward  IV,  however,  parliaments  grow 
much  less  frequent ;  in  his  reign  of  twenty-two  years  he  held 
but  six;  five  years  passed  without  any  parliament.  A  con- 
siderable revenue  from  the  customs  duties  known  as  tonnage 
and  poundage  had  been  granted  to  Henry  V  for  his  life ;  this 
grant  was  repeated  in  the  reign  of  Henry  VI  and  of 
Edward  IV ;  Edward  also  had  other  means  of  getting 
money,  of  which  hereafter.  Henry  VII  seems  to  have  meant 
to  rule  like  his  Lancastrian  ancestors  by  means  of  con- 
stant parliaments;  before  1498  he  had  held  six  parliaments; 
thenceforward  to  the  end  of  his  reign  there  was  but  one 
session,  namely  in  1504.  The  statutes  of  Edward  III,  how- 
ever, remained  on  the  statute  book,  and  very  important 
they  became  at  a  future  time.  I  am  not  sure,  however,  that 
Edward  IV  and  Henry  VII  were  considered  by  their  contem- 
poraries to  be  breaking  the  law  in  not  holding  annual  sessions, 
however  illegal  might  be  the  means  which  enabled  them  to 
get  on  without  parliament.  From  our  present  standpoint 
then  we  see  that  the  letter  of  the  statute  book  probably 
requires  annual  parliaments ;  we  see,  however,  what  is  more 
important  than  this,  that  for  the  last  two  centuries  parliaments 
have,  as  a  matter  of  fact,  been  very  frequent,  though  their 
frequency  has  somewhat  decreased  of  late  years. 


II  Direct  Taxation  179 

III.     Business  of  Parliament. 

And  now  for  what  purposes  were  parliaments  neces- 
sary? It  is  with  no  general  statement  of  the  sovereignty  (in 
the  modern  sense)  of  the  body  composed  by  the  king,  the 
lords  and  the  representatives  of  the  commons,  that  we  must 
begin  our  answer.  Such  a  theory  there  cannot  be,  at  least 
to  any  good  purpose,  until  a  foundation  of  fact  has  been  laid 
for  it,  until  the  body  thus  composed  has  habitually  and 
exclusively  exercised  the  powers  of  sovereignty.  We  have 
to  see  how  this  foundation  of  fact  was  gradually  laid,  and 
we  have  to  remember  that  at  the  beginning  of  the  fourteenth 
century  the  king  in  parliament  was  by  no  means  the  only 
possible  claimant  of  sovereign  power.  Representatives  of  the 
commons  had  but  newly  been  called  to  meet  the  prelates  and 
barons.  Looking  back  now  it  may  seem  to  us  quite  possible 
that  sovereignty  will  ultimately  be  found  to  be  in  the  king 
and  the  baronage,  or  in  the  king  and  his  council,  or  again  in 
the  king  alone. 

(i)  The  field  of  work  in  which  the  cooperation  of  a  parlia- 
ment seems  most  necessary  is  that  of  taxation.  In  1297  the 
principle  has  been  enounced  that  the  common  consent  of  the 
realm  is  necessary  to  the  imposition  of  aids,  prises,  customs : 
saving  the  king's  right  to  the  ancient  aids,  prises  and 
customs.  The  highroad  of  direct  taxation  is  thus  barred 
against  the  king,  though  at  least  one  bypath  is  open.  The 
right  to  tallage  the  demesne  has  not  been  surrendered,  and  in 
1304  Edward  I  exercised  that  right.  Edward  II  did  the 
same  in  1312,  and  so  did  Edward  III  in  1332.  But  on  this 
occasion  parliament  remonstrated  and  the  king  had  to  give 
up  his  project.  This  seems  the  last  attempt  on  the  king's 
part  to  set  a  tallage.  In  1340  (14  Edw.  Ill,  stat  2,  c.  i)  a 
statute  was  obtained  which  declares  that  the  people  shall  be 
no  more  charged  or  grieved  to  make  any  aid  or  sustain  any 
charge,  if  it  be  not  by  the  common  consent  of  the  prelates,  earls, 
barons  and  other  great  men  and  commons  of  the  realm  and 
that  in  the  parliament  Just  at  this  time  too  the  scutage,  the 
composition  for  military  service,  was  becoming  unprofitable 
and  obsolete,  it  belonged  to  an  age  which  had  passed  away. 

12 — 2 


i8o  Constitutional  History  PERIOD 

Aids  for  knighting  the  king's  son  and  marrying  his  daughter 
could  still  be  collected  ;  but  the  amount  of  these  was  fixed  by 
statute  in  1350,  expressly  applying  to  the  king  the  rule  laid 
down  for  other  lords  (1275),  namely  20  shillings  from  the 
knight's  fee,  and  20  shillings  from  £20  worth  of  socage  land. 
These  were  an  insignificant  resource.  On  the  whole,  therefore 
before  the  middle  of  the  fourteenth  century  it  was.  dc  nnlle'y 
illegal  for  the  king  to  impose  a  direct  tax  witr  •>^*t\  consent 
of  parliament.  .  - 

The  history  of  indirect  te\a  ion  Is  inure  complicated, 
However,  customs  on  wool,  \viue  and  general  merchandise 
were  levied  in  the  twelfth  century.  Magna  Carta  says  that 
merchants  are  to  be  free  from  any  'maletolt'  or  unjust 
exaction,  saving  the  ancient  and  right  customs  which  are 
referred  to  as  well  known  things.  In  1275  parliament  grants 
to  Edward  a  certain  Definite  custom  on  wool ;  but  during  the 
reigns  of  the  first  two  Edwards  the  regulation  of  the  customs 
is  still  constantly  in  dispute  between  the  king  and  the  nation. 
There  is  considerable  danger  that  the  king  will  get  his  way; 
it  takes  some  little  reflection  to  see  that  indirect  taxes,  such 
as  customs  duties,  are  taxes  at  all : — if  the  king  can  by 
negotiation,  by  grants  of  privileges,  induce  the  merchants  to 
grant  him  such  dues,  may  he  not  do  so — is  not  this  a  matter 
between  them  and  him  ?  The  commons  however  seem  early 
to  have  seen  to  the  bottom  of  this  question.  Edward  III 
had  to  make  important  concessions.  In  1362  (36  Edw.  Ill, 
stat.  I,  cap.  II)  it  is  provided  that  no  subsidy  or  other 
charge  should  be  set  upon  wool  by  the  merchants  or  by 
any  one  else  without  the  assent  of  parliament  In  1371 
(45  Edw.  Ill,  c.  4)  no  imposition  or  charge  shall  be  set  upon 
wools,  woolfells  or  leather,  without  the  assent  of  parliament. 
This  was  re-enacted  in  1387  (i  I  Ric.  II,  c.  9)  but  with  a  saving 
of  the  king's  ancient  right.  The  legislation  on  this  subject  of 
indirect  taxation  is  not  quite  so  emphatically  clear  as  that 
which  forbad  direct  imposts — some  loopholes  were  left — still 
we  may  say  that  before  the  end  of  the  fourteenth  century  the 
contest  was  at  an  end.  There  were  at  least  no  obvious  ways 
in  which  the  king  could  tax  the  community  without  breaking 
the  law.  The  Lancastrian  kings  seem  to  have  admitted 


1 1  Benevolences  \  8 1 

this.  Even  Edward  IV  may  be  said  to  have  admitted  it ; 
in  his  reign  it  is  that  we  begin  to  hear  of  benevolences, 
extorted  freewill  offerings.  A  statute  of  the  only  parliament 
of  Richard  III  (1483,  I  Richard  III,  c.  2)  was  designed  to 
stop  this  gap.  The  commons  complain  of  new  and  unlawful 
inventions — of  a  new  imposition  called  a  benevolence — and 
it  is  ordained  that  the  subjects  be  in  nowise  charged  by  an 
imposition  called  a  benevolence  or  any  such  like  charge,  and 
that  such  exactions  shall  be  no  example,  but  shall  be  damned 
and  annulled  for  ever. 

Under  the  Tudors  the  danger  is  of  a  different  kind — it  is 
not  so  much  that  the  king  will  tax  without  parliamentary 
consent,  but  that  parliament  will  consent  to  just  whatever  the 
king  wants  and  will  condone  his  illegal  acts.  Thus  in  1491 
Henry  VII  had  recourse  to  a  benevolence  which  brought  him 
in  a  large  sum.  Very  possibly  the  act  of  Richard  III  was 
considered  null  as  being  the  act  of  a  usurper,  though  it 
remained  upon  the  statute  book.  But  at  any  rate  the  parlia- 
ment of  1495  made  this  benevolence  lawful  ex  post  facto ; 
the  king  was  empowered  by  statute  to  enforce  the  promises 
of  those  who  had  promised  money  but  not  yet  paid  it.  Such* 
an  act,  extremely  dangerous  as  it  was  to  the  liberties  of  the 
nation,  was  none  the  less  a  high  exercise  of  parliamentary 
sovereignty — parliament  undertook  to  make  legal  what  had 
been  illegal.  That  is  one  peculiarity  of  the  Tudor  time  and  a 
very  remarkable  one ;  parliaments  are  so  pliant  to  the  king's 
will  that  the  king  is  very  willing  to  acquiesce  in  every  claim 
that  parliament  may  make  to  be  part  of  the  sovereign  body 
of  the  realm.  All  the  statutes  against  taxation  by  virtue  of 
prerogative  are  left  unrepealed  upon  the  statute  book,  to  bear 
fruit  in  a  future  age — at  present  the  king  has  no  need  to  wish 
them  repealed. 

But  not  only  had  parliament  repeatedly  asserted  that 
taxes  were  not  to  be  imposed  without  its  consent,  it  had  also 
exercised  to  the  full  a  power  of  imposing  taxes  of  all  kinds, 
both  direct  and  indirect.  Further  as  regards  taxation,  the 
House  of  Commons  had  won  a  peculiar  importance.1  We 
have  to  remember  that,  to  start  with,  there  are  in  theory  three 
estates  of  the  realm:  (i)  clergy,  (2)  lords,  and  (3)  commons. 


1 82  Constitutional  History  PERIOD 

On  this  theory  it  would  be  reasonable  that  each  estate  should 
tax  itself;  and  this  for  some  time  takes  place — the  clergy 
make  a  grant,  the  lords  another,  the  commons  another.  But 
before  the  end  of  the  fourteenth  century  the  lords  and 
commons  join  in  a  grant,  and  a  formula  is  used  which  puts 
the  commons  (upon  whom  the  bulk  of  taxation  falls)  into  the 
foreground — the  grant  is  made  by  the  common|^#^*fl$ 
assent  of  the  lords  spiritual  and  temporal.  This  f|f*B  appears 
in  1395  and  becomes  the  rule.  In.  4407  H^nr^jlV  assented 
to  the  principle  that  money  grants  PTC  to  be  initiated  in  the 
House  of  Commons,  are  not  to  be  tepoited  to  the  king  until 
both  Houses  are  agreed,  and  are  .o  '  c  reported  by  the  Speaker 
of  the  Lower  House.  Thus  c*  iong  step  has  already  been 
made  towards  that  exclusive  control  over  taxation  which  the 
House  of  Commons  claimed  in  later  ages — the  taxes  upon 
the  laity  are  granted  &y  the  commons  with  the  lords'  assent. 
On  the  laity — the  clergy  still  tax  themselves  in  their  con- 
vocations and  no  act  of  the  parliament  is  as  yet  requisite  to 
give  validity  to  such  a  tax  ;  to  this  extent  the  theory  of  the 
three  estates  still  prevails ;  as  a  matter  of  fact,  however,  the 
convocations  pretty  regularly  follow  the  example  of  the 
commons,  making  a  corresponding  grant  to  that  which  the 
commons  have  made. 

Another  point  of  importance  is  this,  that  during  the 
Middle  Ages  permanent  taxes  are  very  seldom  imposed.  In 
general  a  tax  is  granted  just  for  this  occasion  only :  the  king 
is  granted  a  tenth  of  movables,  or  a  customs  duty,  or  it  may 
be  a  poll  tax  just  to  meet  the  present  demands  upon  his 
resources.  Sometimes  taxes  are  granted  for  two  or  three 
years  to  come,  but  this  is  rare.  This  renders  an  annual  parlia- 
ment a  practical  necessity,  particularly  after  the  long  war 
with  France  has  begun :  every  year  now  the  king  wants 
money,  and  can  only  get  it  by  summoning  a  parliament.  His 
non-parliamentary  revenue  which  comes  from  his  demesne 
lands,  his  feudal  rights  and  so  forth,  is  quite  insufficient  to 
meet  the  drain  of  a  war.  Some  of  the  customs  duties  were 
permanent  taxes.  In  1414  parliament  granted  to  Henry  V 
tonnage  and  poundage  for  his  life.  No  similar  grant  for  life! 
was  made  to  Henry  VI  until  1453 — the  3ist  year  of  his  reign* 


II  Purveyance  and  Preemption  183 

— but  they  were  granted  for  life  to  Edward  IV  in  1465,  to 
Richard  III  in  1484,  and  to  Henry  VII  by  his  first  parlia- 
ment. Such  repeated  grants  of  permanent  taxes  were 
dangerous  precedents,  as  we  find  when  we  come  to  the  reigi^ 
of  Charles  I. 

Henry  VII,  it  is  said,  left  behind  him  a  treasure  of 
£1,800,000.  Edward  IV  also  had  been  rich.  Their  prede- 
cessors had  been  habitually  poor.  The  Wars  of  the  Roses 
were  in  a  great  degree  due  to  the  poverty  of  Henry  VI — he 
could  not  afford  to  govern  the  country  thoroughly.  This 
change  in  the  king's  financial  circumstances  is  of  course  a 
very  important  matter — it  absolves  him  from  the  necessity  of 
convoking  parliament.  In  two-and-twenty  years  Edward  IV 
held  but  six  parliaments;  Henry  VII  helcj  fry**  g^v^n  parlia- 
ments  during  his  24  years.  Whence  did  he  get  his  treasure? 
To  a  large  extent  it  would  seem  from  the  escheats  and 
forfeitures  consequent  on  the  Wars  of  the  Roses;  to  a  large 
extent  also  by  pressing  to  their  uttermost  the  crown's  claims 
for  fines.  It  was  believed  that  his  ministers,  Empson  and 
Dudley,  had  trumped  up  all  manner  of  accusations  for  the 
purpose  of  swelling  the  revenue,  and  were  guilty  of  unjust 
exactions  under  colour  of  the  feudal  rights  to  reliefs,  ward- 
ships and  marriage.  At  the  beginning  of  the  next  reign  they 
were  sacrificed  to  the  popular  outcry. 

One  of  the  burdens  which  has  lain  heavy  on  the  mass  of 
the  people  has  been  that  of  purveyance  and  preemption,  the 
right  of  the  king  and  his  servants  to  buy  provisions  at  the 
lowest  rate,  to  compel  the  owners  to  sell,  and  to  pay  at  their 
own  time — which  often  enough  meant  never.  _It  was  an 
admitted  royal  right;  over  and  over  again  parliament  had 
sought  by  statute  to  bring  it  within  reasonable  bounds  and  to 
prevent  abuses  of  it.  Legislation  begins  with  Magna  Carta 
and  goes  on  through  the  Middle  Ages  ;  one  sees  in  such  legis- 
lation at  once  the  admitted  claim  of  parliament  to  set  limits 
to  royal  rights,  and  on  the  other  hand  the  extreme  difficulty 
that  there  is  in  getting  the  king  to  observe  any  laws  which 
make  against  his  pecuniary  interests. 

In  another  direction  parliament  has  interfered  with  finance. 
In  the  first  place  it  has  claimed  the  power  to  appropriate  the 


184  Constitutional  History  PERIOD 

supplies  granted  to  the  king,  to  say  that  they  shall  be  spent 
in  this  or  that  manner.  Already  in  1348  the  money  is  to  be 
applied  to  the  defence  against  the  Scots,  in  1353  to  the 
prosecution  of  the  war.  In  1390  there  is  more  elaborate 
appropriation  out  of  the  40  shillings  laid  on  the  sack  of  wool, 
10  shillings  the  king  may  have  for  his  present  needs,  while 
the  other  30  shillings  are  only  to  be  expended  in  case  of^l? 
continuance  of  the  war.  This  practice  is  conHr.ied  \\ithttiii- 
creasing  elaboration  under  the  Lancastrian  .>  ?\:;^  But  it  is 
-one  thing  to  say  that  money  shall  on!;  c^  ,i^ht  in  this  way, 
another  to  prevent  its  being  spent  j\  other  ways.  Parliament 
begins  to  demand  the  product/on  u  the  royal  accounts;  we 
hear  of  this  in  1340  and  1341.  In  1377  two  persons  are 
appointed  by  parliament  to  receive  and  expend  the  money 
voted  for  the  war.  In  1379  the  king  presented  his  accounts, 
and  thenceforward  treasurers  of  the  subsidies  were  regularly 
appointed  in  parliament  to  account  to  the  next  parliament 
In  1406  the  commons  were  allowed  to  choose  auditors; 
Henry  IV  told  them  that  'kings  do  not  render  accounts/  but 
in  the  next  year  he  rendered  them.  But  the  principle  had 
to  be  contested  over  and  over  again  ;  it  was  a  principle  of  no 
value  unless  parliament  had  a  will  of  its  own  which  it  would 
exert  year  by  year — this  the  parliaments  of  Edward  IV  and| 
Henry  VII  had  not 

(ii)  We  turn  from  finance  to  the  wider  subject  of  legisla- 
tion. First  let  us  observe,  what  is  of  great  importance,  the 
legislative  formula  of  a  statute.  In  the  reign  of  Henry  VII 
it  has  come  to  be  almost  exactly  what  it  is  at  the  present 
moment  'The  king  our  sovereign  Lord  Henry  VII  at  his 
Parliament  holden  at  Westminster... by  the  assent  of  the 
Lords  spiritual  and  temporal  and  the  commons  in  the  said 
parliament  assembled  and  by  the  authority  of  the  same 
parliament  hath  done  to  be  made  certain  statutes  and  ordi- 
nances in  manner  and  form  following.1  It  is  the  king's  act, 
done  with  the  assent  (sometimes  the  form  runs  'advice  and 
assent ')  of  the  lords  spiritual  and  temporal  and  commons  in 
parliament  assembled  and  by  the  authority  of  the  said  parlia- 
ment These  last  words  are  pretty  new,  'by  the  authority  of 
the  same  parliament* ;  they  occur,  it  is  said,  for  the  first  time 


II  The  Legislative  Formula  185 

as  a  part  of  the  preamble  in  1433,  although  they  occur  in  a 
more  casual  way  as  early  as  1421.  It  is  admitted  therefore 
that  a  statute  derives  its  authority  from  the  whole  parliament, 
Also  we  observe  that  the  commons  now  stand  on  the  same 
footing  as  the  lords ;  their  function  in  legislative  work  is  of 
the  same  kind — they  give  advice,  assent  and  authority.  But 
;t  •'>  form  has  not  always  been  used.  Throughout  the  four- 
temiti  certury  the  commoners  generally  appear  in  a  sub- 
ordinate pohttion — the  statute  is  made  by  the  king  with  the 
assent  of  the  ^ relaxes,  carls  and  barons,  and  at  the  request  of 
the  knights  of  the  shire, aod  commons  in  the  said  parliament : 
sometimes  it  is  at  the  iav.  ace  and  special  request  of  the 
commons — occasionally  the  assent  of  the  commons  is  men- 
tioned. This  becomes  more  common  in  the  fifteenth  century ; 
in  1435  and  1436  we  have  cby  the  advice  and  assent  of  the 
lords  at  the  special  request  of  the  commons';  in  1439  'by 
the  advice  and  assent  of  lords  and  comhions';  and  this  form 
is  used  for  several  years.  But  in  1450  we  revert  to  'advice 
and  assent  of  lords  and  request  of  commons' — we  get  the  one 
form  in  1455,  the  other  in  1460.  Throughout  the  reign  of 
Edward  IV  the  two  are  promiscuously  used.  It  is  not  until 
the  House  of  Tudor  is  on  the  throne  and  the  Middle  Ages 
are  at  an  end  that  all  trace  of  the  original  position  of  the 
commons  has  vanished.  Nevertheless  it  had  long  been 
admitted  that  the  assent  of  the  commons  was  necessary  in 
order  to  give  to  a  legislative  act  the  quality  of  a  statute — 
that  this  was  necess.ary  at  least  if  the  law  was  to  deal  with 
temporal  affairs. 

Let  us  first  take  the  point  raised  by  these  last  words. 
We  have  to  remember  that  at  starting  the  commons  could 
hardly  claim  any  higher  place  than  that  of  the  clergy,  and  we 
must  remember  that  the  theory  of  the  time  partitioned  human 
affairs  into  two  provinces — spiritual  and  temporal.  It  must 
long  have  remained  a  doubtful  question  whether  the  king, 
with  the  advice  of  the  lords,  could  not  make  a  statute  on  the 
petition  of  the  clergy,  just  as  well  as  on  the  petition  of  the 
commons — if  the  statute  deals  with  the  state  the  voice  of  the 
commons  must  be  heard,  if  with  the  church  the  voice  of  the 
clergy.  Practically  the  clergy  solved  the  difficulty  by  neglect- 


1 86  Constitutional  History  PERIOD 

ing  to  accept  the  place  that  was  offered  them  in  the  national 
assembly ;  but  there  are  not  wanting  some  signs  that  in  the 
fourteenth  century  the  accepted  theory  allowed  the  king  to 
make  a  statute  with  the  assent  of  the  lords  on  a  petition  of  the 
clergy  without  consulting  the  commons.  In  1377,  however,  the 
commons  definitely  demanded  that  neither  statute  nor  ordi- 
nance should  be  made  on  the  petition  of  the  clergy  without 
the  consent  of  the  commons:  this  demand  seems  to  have 
been  tacitly  conceded.  Turning  to  the  other  side  of  the 
theory,  it  does  not  seem  to  have  been  very  seriously  contended 
that  legislation  approved  by  lords  and  commons  required  also 
the  consent  of  the  clergy  ;  but  still  the  practice  of  summoning 
them  to  parliament  seems  to  have  been  maintained  chiefly  in 
order  to  prevent  their  asserting  that  they  were  not  bound  by 
laws  to  which  they  had  not  consented.  The  fact  that  the 
prelates  were  a  majority  in  the  House  of  Lords  prevented 
collisions  between  church  and  state,  and  was  a  guarantee 
that  the  interests  of  the  clergy  would  not  be  neglected.  It 
is  worth  notice,  however,  that,  from  an  early  time,  the  lords 
spiritual  and  temporal  were  conceived  as  forming  one  body — 
a  statute  might  be  made  though  the  prelates  had  voted  against 
it.  In  1351  they  withheld  their  assent  from  the  statute  of 
Provisors ;  they  are  not  mentioned  in  it  as  consenting  parties, 
but  still  it  was  a  statute. 

And  now  to  the  larger  question  as  to  the  whereabouts  of 
legislative  power.  We  have  seen  that  already  in  1322  the 
principle  was  announced  that  legislation  required  the  consent 
of  the  prelates,  earls,  barons  and  commonalty  of  the  realm. 
Such  consent  was  necessary  for  a  statute;  and  from  that 
time  onwards  it  seems  an  admitted  principle  that  the  consent 
of  both  houses  was  necessary  for  a  statute :  for  a  long  time 
to  come  indeed  the  function  assigned  to  the  commons  was,  as 
we  have  seen,  that  of  petitioning,  not  that  of  advising  or 
assenting;  but  of  course  *  petition'  is  assent  and  something 
more.  But  then  we  have  to  notice  that  a  statute  was  not  the 
only  known  form  of  legislation  ;  we  have  to  distinguish  it 
from  an  ordinance.  Now  from  Edward  I's  day  onwards  a  set 
of  rolls  known  as  statute  rolls  was  kept.  What  was  entered 
upon  them  was  a  statute,  and  by  the  beginning  of  Edward  Ill's 


II  Statute  and  Ordinance  187 

reign  it  was  an  established  principle  that  nothing  was  to  go 
on  to  the  statute  roll  save  what  had  received  the  consent  of 
king,  lords  and  commons.  We  cannot  apply  this  to  earlier 
times ;  we  to  this  day  receive  as  statutes  many  laws  made  by 
Edward  I  in  assemblies  to  which,  as  far  as  we  know,  no 
representatives  of  the  commons  were  summoned;  it  is  exceed- 
ingly doubtful  whether  those  two  pillars  of  real  property  law, 
trie  rj*r'a  Emptores  and  the  De  Donis  Conditionalibus,  were 
made  with  the  assent  of  any  such  representatives.  However, 
the  principle  is  conceded  under  Edward  II.  But  although  it  be 
allowed  that  a  statute  may  a, quire  the  consent  of  both  houses, 
this  does  not  decide  that  in  \  j  other  manner  can  laws  be 
made.  Beside  the  statute  thei  ^  might  be  room  for  ordinances 
made  by  the  king  with  the  advice  of  the  lords,  or  made  by 
the  king  in  his  council.  '  Great  councils,  magna  concilia,  are 
still  held  under  Edward  II  and  Edward  III,  meetings  of  the 
king  and  his  council  with  the  lords  spiritual  and  temporal. 
Such  assemblies,  however,  are  chiefly  held  for  deliberative 
purposes — they  were  not  serious  rivals  for  parliament ;  on  the 
whole  the  royal  will  was  likely  to  find  the  lords  as  intractable 
as  the  commons.  The  rival  that  parliament  had  seriously  to 
fear  was  the  king  in  council.  Now  it  seems  to  have  been 
admitted  during  the  fourteenth  century  that  the  king  in 
council  enjoyed  a  certain  amount — or  rather  an  uncertain 
amount — of  legislative  power.  He  could  not  revoke  or  alter 
statutes ;  he  did  so  on  more  than  one  occasion,  but  this  was 
generally  regarded  as  an  abuse.  But  without  revoking  or 
overriding  statutes  there  was  still  a  field  for  legislation;  regard 
being  had  to  past  history  we  cannot  be  surprised  at  this.  We 
find  that  parliament  acknowledges  the  existence  of  this  sub- 
ordinate legislative  power,  even  on  occasions  desires  that  it 
may  be  used.  A  statute  is  regarded  as  a  very  solemn  affair, 
not  easily  to  be  repealed ;  temporary  legislation,  legislation 
about  details,  should  be  by  ordinance.  As  time  goes  on,  how- 
ever, the  existence  of  two  legislative  powers  leads  to  frequent 
disputes.  Richard  II  presses  the  ordaining  power  beyond  all 
bounds:  *  What  is  the  use/  asks  a  contemporary,  'of  statutes 
made  in  parliament?  They  have  no  effect.  The  king  and 
his  privy  council  habitually  alter  and  efface  what  has  pre- 


1 88  Constitutional  History  PERIOD 

viously  been  established  in  parliament,  not  merely  by  the 
community  but  even  by  the  nobility1.'  In  1389  the  commons 
pray  that  the  chancellor  and  council  may  not  make  ordinances 
contrary  to  common  law  and  statute.  The  king  answers  that 
what  has  been  done  shall  be  done  still,  saving  the  king's 
prerogative.  Richard  had  a  theory  of  absolute  monarchy, 
and  he  was  deposed.  One  of  the  charges  against  him  was 
that  he  had  said  that  the  laws  were  in  his  own  mouth  and 
often  enough  in  his  own  breast  The  Lancastrian  kings  were 
kings  by  Act  of  Parliament ;  they  meant  to  rule  and  did  rule 
by  means  of  parliaments.  Under  them  we  hear  few  com- 
plaints about  the  ordaining  power — they  seem  to  have  used 
it  sparingly.  At  the  close  of  the  Middle  Ages  its  limits  are 
still  very  indefinite;  in  this  lies  one  of  the  great  dangers  for 
future  times.  The  king,  it  is  clear,  cannot  revoke  or  override 
a  statute,  at  least  in  a  general  fashion ;  but  still  by  ordinances 
made  in  his  council  he  has  a  certain  power  of  adding  to  the 
law  of  the  land.  We  have  been  obliged  to  say  that  he  cannot 
override  a  statute  in  a  general  fashion.  But  here  again  is 
another  danger — is  there  a  dispensing  power? — can  the  king 
exempt  this  or  that  person  from  the  scope  of  a  statute?  That 
he  has  some  such  power  it  is  difficult  to  deny;  parliament  has 
quietly  submitted  to  its  exercise ;  as  regards  certain  statutes 
the  king  has  habitually  exercised  it,  has  given  his  license  to 
A.B.  to  do  something  forbidden  by  statute :  in  particular  the 
anti-papal  statutes  have  habitually  been  dispensed  with,  so 
have  the  statutes  of  mortmain  which  forbid  religious  bodies 
to  acquire  land.  What  is  the  limit  to  this  power?  It  is  hard 
to  say.  The  question  is  made  the  more  difficult  by  this,  that 
very  often  the  sanction  established  by  the  statute  is  some 
fine  or  forfeiture  of  which  the  king  is  to  have  the  benefit — 
may  not  the  king  renounce  this  benefit  in  advance,  may  he 
not  say  that  he  will  not  exact  it  from  A.B.  if  A.B.  infringes 
the  statute?  It  is  difficult  to  say  that  he  may  not.  Two 
indefinite  powers,  an  ordaining  and  a  dispensing  power,  are 
at  the  end  of  the  Middle  Ages  part  of  the  king's  inheritance. 

Another  point  connected  with  these  last  questions  has  been 
cleared  up.   Throughout  the  fourteenth  century  there  is  danger 

1  Walshigham,  II,  48*     Stubbs,  Constitutional  History  %  vol.  II,  §  292. 


II  Growing  Bulk  of  Statute  Law        189 

that  though  the  king,  with  the  lords'  assent,  grants  the  petition 
of  the  commons,  the  consequent  statute  will  by  no  means  do 
just  what  the  commons  want.  The  statute  is  not  drawn  up 
until  after  the  parliament  is  dissolved ;  its  form  is  settled  in 
the  king's  council,  and  it  may  not  correspond  very  closely 
with  the  petition.  The  commons  over  and  over  again  protest 
against  this ;  the  petitions  are  tampered  with  before  they  are 
turned  mtp  statutes.  In  1414  this  point  is  conceded.  The 
commons^ray  €  that  there  never  be  no  law  made  and  engrossed 
as  statute  an- »  lafr'raijjjier  by  additions  nor  diminutions  by  no 
manner  of  term  or  tenris  the  which  should  change  the  sen- 
tence and  the  intent  askaV  The  king  in  reply  grants  that 
from  henceforth  'nothing  be  enacted  to  the  petition  of  the 
commons  contrary  to  their  asking,  whereby  they  should  be 
bound  without  their  assent1/  Thus  gradually  the  practice  is 
introduced  of  sending  up  to  the  king  not  a  petition  but  a  bill 
drawn  in  the  form  of  a  statute,  so  that  the  king  shall  have 
nothing  to  do  save  to  assent  or  dissent.  This  became  the 
regular  practice,  and  under  Henry  VII  was  adopted  in  most 
cases  of  importance3. 

It  is  needless  to  say  that  the  king  still  retains  and  often 
exercises  the  power  of  refusing  to  legislate.  A  statute  is  still 
very  really  and  truly  the  king's  act.  The  form  of  assent  has 
already  become  what  it  still  is  le  roy  le  vent\  the  form  of 
dissent  is  le  roy  s'avisera — a  civil  form  of  saying  No,  but  a 
form  not  unfrequently  used. 

It  should  be  remembered  that  legislative  power  is  by  this 
time  a  power  that  has  been  constantly  and  freely  exercised. 
The  statute  book  is  already  a  bulky  volume.  King  and 
parliament  have  taken  upon  themselves  to  interfere  with 
every  department  of  law — even  to  regulate  the  wages  oi 
labourers,  the  price  of  commodities,  the  dress  which  may  be 
worn  by  men  and  women  of  different  stations  in  life.  The 
statutes  of  Edward  III  and  Richard  II  have  hardly  the  deep 
permanent  interest  which  we  find  in  the  statutes  of  Edward  I; 
they  do  not  in  the  same  way  go  to  the  very  root  of  the 

1  Rot.  ParL  vol.  II,  22. 

2  The  change  took  place  about  the  end  of  the  reign  of  Henry  VI.    Stubbs, 
Constitutional  History i  vol.  II,  §290. 


190  Constitutional  History  PERIOD 

ordinary  law,  the  land  law,  the  law  of  civil  procedure ;  still 
they  are  very  miscellaneous  and  high-handed.  Under  the 
Lancastrian  kings  there  is  less  legislation — this  is  one  of  the 
causes  of  their  fall :  the  maintenance  of  peace  and  order  is 
not  sufficiently  attended  to — the  great  men  are  becoming  too 
great  for  the  law.  The  few  parliaments  of  Edward  IV  do 
little.  Under  Henry  VII,  though  parliaments  are  few,  still 
they  pass  valuable  statutes ;  it  is  recognized  that  a  good  deal 
of  the  medieval  common  law  sadly  needs  amendment— there 
are  new  wants  to  be  attended  to — and  above  all  order  is  to 
be  re-established  and  preserved. 

B.     The  King  and  his  Council. 

The  succession  co  the  throne  has  had  a  stormy  history. 
Before  •  the  end  of  the  fourteenth  century  two  kings  have 
been  deposed,  and  onfe  king  has  succeeded  to  the  throne  who, 
according  to  our  ideas,  had  no  hereditary  right.  A  modern 
constitutional  lawyer  has  no  great  difficulty  with  the  case  of 
Edward  II,  he  can  say  that  Edward  resigned  the  kingdom 
and  that  he  was  at  once  succeeded  by  his  rightful  heir; 
if  this  be  a  precedent  at  all,  it  is  a  precedent  for  what 
should  happen  in  case  a  king  abdicates.  Still  there  can,  I 
think,  be  little  doubt  that  the  parliament  which  met  in 
January,  1327,  conceived  that  it  had  full  power  to  depose  a 
worthless  king.  It  had  been  summoned  in  a  way  which  was 
at  least  outwardly  regular — the  king  was  in  fact  a  captive  in 
the  hands  of  Isabella  and  Mortimer — the  great  seal  was  in 
their  power  and  the  summons  was  issued  in  the  king's  name. 
The  proceedings,  however,  were  tumultuary.  In  the  midst  of 
a  noisy  mob  it  was  resolved  to  reject  the  father  in  favour  of 
the  son.  Articles  justifying  the  deposition  were  drawn  up — 
the  charges  are  very  vague  and  general,  amounting  to  this, 
that  Edward  was  incompetent  and  incorrigible1.  His  resig- 
nation was  then  procured.  On  the  whole,  as  it  seems  to  me, 
these  proceedings,  so  far  from  strengthening  the  notion  that 
a  king  might  legally  be  deposed,  demonstrated  pretty  clearly 

1  Stubbs,  Constitutional  History -,  vol.  II,  §  255. 


II  Deposition  of  Richard  II  191 

that  there  was  no  body  empowered  by  law  to  set  the  king 
aside.  The  device  of  issuing  writs  in  the  king's  own  name, 
to  summon  the  parliament  which  is  to  depose  him,  the  extor- 
tion of  a  formal  resignation,  make  the  case  rather  a  precedent 
for  revolution  than  a  precedent  for  legal  action1. 

We  come  now  to  the  events  of  1399.  The  deposition, 
for  such  for  a  moment  we  may  call  it,  of  Richard  II,  has,  I 
tliitilc,  -\  greater  constitutional  significance  than  the  deposition 
of  Edward  if- -that  is  to  say,  the  complaints  against  him 
which  found  expression  in  a  series  of  formal  charges,  are 
not  vague  complaints  of  badness  and  uselessness,  but  accuse 
him  of  having  broken  the  law.  He  has  tried  to  play  the 
absolute  monarch  ;  he  has  been  acting  on  a  theory  of  the 
kingship  which  is  contrary  to  our  laws — he  has  said  that  the 
laws  were  in  his  own  mouth  and  often  in  his  own  breast,  that 
he  by  himself  could  change  and  frame  the  laws  of  the  kingdom, 
that  the  life  of  every  liegeman,  his  lands,  tenements,  goods 
and  chattels,  lay  at  his  royal  will  without  sentence  of  for- 
feiture, and  he  has  acted  on  these  sayings.  The  revolution, 
if  such  we  call  it,  is  in  this  case  a  protest  against  absolutism. 
We  must  not  plunge  into  the  general  history  of  the  time ; 
the  forms  observed  are  what  chiefly  concern  us.  Henry  of 
Lancaster  had  landed,  the  nation  as  a  whole  had  determined 
that  he  should  be  king — Richard  had  no  party,  made  no 
serious  effort,  delivered  himself  up  to  Henry,  and  offered 
to  resign  the  crown.  A  parliament  was  then  summoned,  the 
writs  being  attested  by  Richard  and  the  council.  It  was 
proposed  that  the  king  should  execute  a  deed  of  resignation 
before  the  parliament  met.  It  was  objected  that  in  such  case 
the  parliament  would  be  dissolved  so  soon  as  it  met  by 
the  act  of  resignation.  The  expedient  was  then  adopted  of 
issuing  new  writs  on  the  day  on  which  the  resignation  was 
declared,  summoning  the  parliament  to  meet  six  days  later. 

1  It  will  not  be  impertinent  to  mention  that  the  idea  of  an  heir  inheriting, 
while  yet  his  father  is  physically  alive,  was  not  unfamiliar  to  our  medieval  law. 
There  was  such  a  thing  as  civil  death.  If  a  man  entered  religion — that  is  to  say 
became  a  monk — he  died  to  the  world ;  his  heir  at  once  inherited,  his  will  took 
effect,  and  his  executors  might  sue  for  debts  that  had  been  due  to  him.  It  might 
well  be  considered  that  a  king  who  had  abdicated  was  dead  to  the  law.  F.  VV.  M. 


Constitutional  History  PERIOD 

Before  the  Parliament  met  Richard  executed  a  formal  deed 
of  abdication,  renouncing  all  royal  rights,  and  absolving  all 
his  people  from  homage,  fealty  and  allegiance,  and  declaring 
himself  worthy  to  be  deposed.  On  the  meeting  of  parliament 
the  deed  was  produced.  The  question  was  put  whether  it 
should  be  accepted.  It  was  accepted.  The  long  list  of 
charges  was  read,  and  parliament  voted  that  they  formed  a 
good  ground  for  deposing  the  king  and  that  ex  abundnnti 
they  would  proceed  to  depose  him.  A  sentence  was  then 
drawn  up  and  read  declaring  that  Richard  was  deposed  from 
all  royal  dignity  and  honour.  Commissioners  were  then  sent 
to  read  this  sentence  to  him.  Apparently  it  did  not  enter  the 
heads  of  any  concerned  that  the  estates  lawfully  summoned 
could  not  depose  a  king  for  sufficient  cause — though  he  had 
resigned,  they  put  it  to  the  vote  whether  his  resignation  should 
be  accepted  and  ex  atyundanti,  as  they  said,  proceeded 'formally 
to  depose  him.  Peirhaps  they  feared  to  let  the  matter  rest 
upon  an  act  of  resignation,  for  this  might  leave  it  open  for 
Richard  to  say  at  some  future  time,  and  not  without  truth, 
that  the  act  was  not  voluntary,  but  had  been  extorted  from 
him  by  duress.  Still  the  deposition  could  really  stand  on 
no  better  footing  than  the  abdication;  if  Richard  was  coerced 
into  resigning  he  was  coerced  into  summoning  the  parliament, 
and  only  by  virtue  of  the  king's  summons  had  the  parliament 
which  deposed  him  any  legal  being.  This  perhaps  is  the 
reason  why  very  soon  afterwards  Richard  disappears  from  the 
world. 

Richard  deposed,  Henry  formally  claimed  the  crown  as 
descended  in  the  right  line  of  descent  from  Henry  III  and 
as  sent  by  God  to  recover  his  right,  when  the  realm  was  in 
point  to  be  undone  for  default  of  governance  and  undoing 
of  the  good  laws.  It  was  proposed  and  carried  that  he  should 
be  king.  The  fact  that  Henry  IV  should  have,  though  in 
vague  terms,  asserted  an  hereditary  right  is  certainly  important 
— showing,  as  it  does,  that  there  was  by  this  time  a  strong 
sentiment  in  favour  of  strict  descent.  He  seems  to  have 
stooped  to  encouraging  the  story  which  had  been  trumped 
up  that  his  ancestor,  Edmund  of  Lancaster,  was  the  firstborn 
son  of  Henry  III — older  therefore  than  Edward  I.  A  title 


II  The  Yorkist 


193 


as  heir  to  Richard  II  or  Edward  III  he  did  not  assert.  Such 
an  assertion  would  have  opened  a  grave  problem.  Of  course 
according  to  what  became  the  orthodox  legal  theory  the 
House  of  York  had  a  better  right.  It  traced  its  title  to  Lionel 
of  Clarence,  a  son  of  Edward  III,  older  than  John  of  Gaunt, 
from  whom  Henry  was  descended — but  then  it  had  to  trace 
this  title  through  a  woman,  through  Lionel's  daughter  Philippa. 
Now  certainly  the  analogies  of  private  law  were  by  this  time 
in  favour  of  the  daughter  of  an  elder  son.  But  it  is  to  be 
remembered  that  a  title  to  the  crown  of  England  had  not 
yet  been  transmitted  by  a  woman,  except  in  the  case  of 
Henry  II,  whose  right  came  to  him  through  his  mother  the 
Empress.  But  in  that  case  the  only  competitor  was  Stephen. 
Stephen  himself  claimed  through  a  woman.  It  was  quite 
possible  therefore  to  contend  that  so  long  as  there  was  a 
male  claiming  solely  through  males,  no  woman,  and  no  man 
claiming  through  a  woman,  could  be  admitted.  In  favour 
of  that  doctrine  Fortescue,  chief  justice  under  Henry  VI, 
wrote  an  elaborate  treatise ;  he  was  prepared  to  defend  his 
master's  title  even  as  a  matter  of  pure  hereditary  right.  But 
Henry  IV  at  his  accession  seems  to  have  shrunk  from  raising 
this  question;  he  sought  to  evade  it  by  hinting  at  a  title 
derived  through  his  mother  and  Edmund  of  Lancaster  from 
Henry  III.  However,  it  is  to  be  noticed  that  in  1399  and 
for  many  years  afterwards  we  hear  nothing  of  the  Yorkist 
claim,  those  who  have  what  we  regard  as  the  best  blood  in 
their  veins  acquiesce  cheerfully  in  the  parliamentary  settle- 
ment; the  Earl  of  York  lives  in  close  friendship  with  Henry  V. 
There  is  no  impression,  at  least  no  general  impression,  that 
the  transactions  of  1399  were  not  perfectly  lawful  or  that  the 
parliamentary  title  of  the  Lancastrian  kings  is  disputable. 
Had  Henry  V  left  a  decently  competent  son,  even  had 
Henry  VI  married  any  woman  but  Margaret  of  Anjou,  nothing 
might  ever  have  been  heard  of  the  Yorkist  title.  It  is  only 
in  the  course  of  bitter  political  strife  that  Richard  of  York 
begins  to  put  forward  his  title  as  heir  to  Edward  III.  At 
first  he  is  only  anxious  as  to  what  is  to  happen  when  Henry 
dies,  as  probably  he  will  die  without  issue,  for  he  has  been 
married  five  years  and  has  no  son.  This  must  open  a  dis- 

M.  13 


194  Constitutional  History  PERIOD 

putable  succession  because  the  Beau  forts  have  claims  of  a 
sort  derived  from  John  of  Gaunt.  The  queen  gave  birth 
to  a  son,  and,  though  not  at  once,  the  claim  to  be  Henry's 
successor  becomes  a  claim  to  supplant  Henry.  When  in 
1460  the  Duke  of  York  laid  his  pedigree  before  the  lords 
with  a  formal  demand  for  the  crown,  legitimism  makes  .its 
first  appearance  in  English  history.  A  compromise?*  *$%& 
patched  up  for  a  while — Henry  was  to  remain  kin  •*  |$Ut  the 
Duke  was  to  succeed  him.  War  broke  cut.  f!  t  Duke  was 
killed.  His  son  Edward,  Earl  of  MtircK  sJ,:ed  the  crown 
and  sceptre  and  had  himself  prc.Iaimed  king  Edward  IV. 
He  reckoned  his  reign  from  4  T'  larch,  1461,  the  day  on  which 
he  proclaimed  himself  king.  There  had  been  no  formal 
election,  no  parliamentary  recognition :  he  reigned  by  hereditary 
right  A  parliament  recognized  the  justice  of  the  claim.  The 
three  Henrys  becamrj  pretended  kings,  kings  de  facto  but  not 
dejure. 

So  far  as  I  can  understand  it,  the  confusing  struggle  which 
we  call  the  Wars  of  the  Roses  is  not  to  any  considerable 
extent  a  contest  between  opposite  principles — it  is  a  great 
faction  fight  in  which  the  whole  nation  takes  sides.  Still  the 
House  of  Lancaster  was  in  a  measure  identified  with  a 
tradition  of  parliamentary  government,  had  been  placed  on 
the  throne  to  supplant  a  king  who  had  a  plan  of  absolute 
monarchy,  had  been  obliged  to  rely  on  parliament  and  more 
especially  on  the  commons,  perhaps  owed  its  fall  to  its  having 
allowed  both  lords  and  commons  to  do  what  they  pleased,  to 
get  on  without  government  On  the  other  hand,  the  claim  of 
the  House  of  York  was  bound  up  with  a  claim  to  rule  in 
defiance  of  statutes.  It  might  be  urged  that  the  statutes  were 
void  as  having  never  received  the  assent  of  any  rightful  king, 
but  an  assertion  that  the  laws  under  which  a  nation  has  been 
living  for  the  last  half-century  are  not  laws,  because  you  or 
your  ancestors  did  not  assent  to  them,  is  practically  an  assertion 
that  you  have  a  right  to  rule  in  defiance  of  any  laws  however 
made. 

It  is  fortunate  for  us  that  Edward  IV  did  not  leave  a  son 
old  enough  to  step  into  his  father's  shoes,  and  that  no  sooner 
had  the  crown  been  acquired  by  the  legitimist  family  than  the 


II  The  King's  Powers  195 

succession  was  again  disturbed  by  the  crimes  of  Richard  III. 
Henry  VII  had  according  to  our  ideas  little  that  even  by 
courtesy  could  be  called  hereditary  right.  Probably  he  would 
not  have  got  the  crown  had  he  not  undertaken  to  marry 
Elizabeth,  the  daughter  of  Edward  IV.  Still  an  hereditary 
right  he  did  assert,  and  Stubbs  has  argued  that  according 
to  the  notions  of  the  time  the  assertion  was  not  absurd1.  He 
was  accounted  to  have  reigned  from  the  day  of  Bosworth; 
before  his  marriage  parliament  declared  that  the  inheritance 
of  the  crown  should  rest  and  remain  in  the  then  sovereign 
lord,  king  Henry  VII,  and  the  heirs  of  his  body;  he  refused 
to  be  king  merely  in  right  of  his  wife. 

The  king's  powers  we  might  consider  under  various  heads, 
but  repetition  must  be  avoided.  We  have  already  seen 
that  it  is  for  him  to  summon  parliament;  parliament  cannot 
meet  unless  he  issues  writs.  Again1  he  could  prorogue 
parliament,  suspend  its  sessions  and  dissolve  parliament. 
We  have  seen  too  that  the  constitution  of  a  parliament 
depended  in  no  small  degree  upon  his  will;  it  was  for  him 
to  create  peers — but  the  hereditary  principle  was  here  a  check 
on  his  power ;  the  bishops  were  practically  his  nominees ;  he 
had  assumed  the  power  of  granting  to  boroughs  the  right  to 
send  representatives ;  disputes  over  contested  elections  came 
before  him  and  his  council.  His  assent  was  absolutely 
necessary  to  every  statute  ;  besides  this,  he  had  a  somewhat 
indeterminate  power  of  making  ordinances  and  dispensing 
with  statutes.  >  Certain  things  he  certainly  could  not  do ;  he 
could  not  repeal  a  statute,  he  could  not  impose  a  tax,  it  had 
become  unlawful  for  him  to  meddle  with  the  ordinary  course 
of  justice.  He  was  bound  by  law — true  the  principle  still 
held  good,  it  holds  good  at  the  present  day,  that  'the  king  can 
do  no  wrong ' — law  had  no  coercive  process  against  the  king, 
he  could  not  be  sued  or  prosecuted  ;  the  only  way  of  getting 
justice  out  of  him  was  by  a  petition,  an  appeal  to  his  conscience. 
But  means  had  already  been  found  to  reconcile  this  royal 
immunity  with  ministerial  responsibility — if  he  could  not  be 
sued  or  prosecuted  his  servants  could  be,  and  his  command 
would  shield  no  one  who  had  broken  the  law.  What  is  more, 

*  Lectures  on  Medieval  and  Modern  History ',  pp.  342-5. 

13—2 


196  Constitutional  History  PERIOD 

as  we  shall  see,  a  procedure  by  way  of  impeachment  had 
been  evolved  whereby  parliament  could  bring  home  their  re- 
sponsibility to  his  ministers. 

But  then  again,  the  executive  or  administrative  or  govern- 
mental power  was  the  king's.  You  will  be  familiar  with  such 
terms  as  these,  they  pass  current  in  modern  political  life  and 
of  course  they  have  a  meaning.  When  we  have  rrark*- •:'  off 
the  work  of  legislation,  the  imposing  of  genera!  }&*•$  u[>on 
the  community,  and  also  the  work  of  judicial; r£,  the  hearing 
and  determining  criminal  charges  and  civil  actions,  there  yet 
remains  a  large  sphere  of  action,  which  we  indicate  by  such 
terms  as  these.  Governmental  seems  to  me  the  best  of  these 
terms  ;  executive  and  administrative  suggest  that  the  work  in 
question  consists  merely  in  executing  or  administrating  the 
law,  in  putting  the  laws  in  force.  But  in  truth  a  great  deal 
remains  to  be  done^  beyond  putting  the  laws  in  force — no 
nation  can  be  governed  entirely  by  general  rules.  We  can 
see  this  very  plainly  in  our  own  day — but  it  is  quite  as  true 
of  the  Middle  Ages: — there  must  be  rulers  or  officers  who  have 
discretionary  powers,  discretionary  coercive  powers,  power  to 
do  or  leave  undone,  power  to  command  that  this  or  that  be 
done  or  left  undone.  The  law  marks  out  their  spheres  of 
action,  the  law  (as  we  think)  gives  them  their  powers.  I  do 
not  wish  you  to  think  that  a  definite  theory  to  the  effect  that 
while  legislative  power  resides  in  king  and  parliament,  the 
so-called  executive  power  is  in  the  king  alone,  was  a  guiding 
theory  of  medieval  politics.  On  the  contrary,  the  line  between 
what  the  king  could  do  without  a  parliament,  and  what  he 
could  only  do  with  the  aid  of  parliament,  was  only  drawn 
very  gradually,  and  it  fluctuated  from  time  to  time.  On  the 
one  hand  we  find  that  the  king  has  a  certain,  or  perhaps  we 
should  say  uncertain,  power  of  making  general  ordinances 
which  shall  have  the  force  of  law.  On  the  other  hand  even 
at  an  early  time  parliaments  interfere  with  what  a  political 
theorist  would  consider  to  be  purely  executive  or  governmental 
work  :  for  instance  they  are  sometimes  strong  enough  to  dictate 
to  the  king  who  shall  be  his  councillors — as  we  should  say, 
they  appoint  the  ministry.  Such  a  power  as  that  our  modern 
parliaments  do  not  openly  exercise,  but  it  was  exercised  in 


II      Variations  in  the  Meaning  of  Kingship  197 

the  Middle  Ages.  Again  we  find  a  parliament  ordaining  that 
the  taxes  shall  be  paid  to  two  particular  persons  and  be 
expended  by  them  on  the  war.  The  production  and  audit 
of  the  royal  accounts  is  also  insisted  on :  this  we  cannot 
call  legislative  business.  In  short,  the  more  we  study  our 
constitution  whether  in  the  present  or  the  past,  the  less  do 
we  find  it  conform  to  any  such  plan  as  a  philosopher  might 
invent  in  his  study. 

Still  pailiament,  even  when  the  king  is  weak,  leaves  him  a 
large  field  of  aclicn  and  expects  him  to  be  busy  in  it.  A 
do-nothing  king,  or  a  king  who  is  merely  a  moderator  between 
contending  parties,  or  a  king  who  merely  executes  the  ex- 
pressed desires  of  parliament,  is  not  the  ideal  king  of  the 
Middle  Ages.  He  is  the  ruler  of  the  nation,  the  commander 
of  its  armies  and  its  fleets,  the  national  treasure  is  his  treasure, 
and  in  very  general  terms  does  parliament  interfere  with  his 
expenditure ;  it  is  for  him  to  keep  the  peace,  the  peace  is  his 
peace ;  all  public  officers,  high  and  low,  with  but  few  exceptions 
are  appointed  by  him,  dismissible  by  him ;  they  hold  their 
offices  during  his  good  pleasure — this  is  true  of  the  high 
officers  of  state,  the  chancellor  and  treasurer,  it  is  true  of 
the  justices  of  the  king's  courts,  it  is  true  of  the  sheriffs,  it 
is  expected  of  him  that  he  will  supervise  the  work  of  his 
servants,  that  he  will  call  them  to  account,  that  he  will  dismiss 
them  when  they  offend. 

It  is  somewhat  unsatisfactory  work,  this  attempt  to  speak 
in  general  terms  of  a  long  and  eventful  period  like  the  two 
centuries  which  divide  the  accession  of  Edward  II  from  that 
of  Henry  VIII.  Changes  in  the  letter  of  the  law  are,  it  may  be, 
few  and  gradual,  but  the  real  meaning  of  the  kingship  varies 
from  decade  to  decade.  The  character  of  the  king,  the  wants 
of  the  time,  these  decide  not  merely  what  he  will  do  but  what 
he  can  do :  this  we  must  learn  by  tracing  history  step  by 
step, — by  seeing  that  the  kingship  is  practically  a  different 
thing  in  almost  every  reign ;  it  changes  as  we  pass  from 
Edward  III  to  Richard  II,  again  as  we  pass  from  Richard  II 
to  Henry  IV,  and  so  on.  To  watch  this  process  in  the  detail 
of  practice  we  have  here  no  time,  rather  let  us  speak  of  theory, 
and  theory  we  shall  find  is  more  permanent  than  practice 
Richard  II,  there  can  be  little  doubt,  not  only  determined 


198  Constitutional  History  PERIOD 

to  act  as  though  he  were  an  absolute  monarch,  but  had  a 
theory  of  absolute  monarchy.     Hg  made  *  a  resolute  attempt 


imposed  ufipP  hl>g  predecessors  and  he  had  a  theory~Wfcich 
justified  him  in  the  attempt  ;  such  limitations  were  vain,  idle 
efforts  to  limit  a  limitless  prerogative1.  When  he  falls  it  is 
not  merely  his  practice  but  his  theory  that  is  condemn^J^ 
not  merely  has  he  been  guilty  of  many  illegalities,  but  hollas 
held  himself  above  law  :  he  has  said  that  the  laws  are  in  his 
own  breast,  that  the  lives,  lands  and  jojd  (  the  subjects 
are  the  king's  —  in  short,  quor*  friitcipi  flacuit  legis  habet 
vigorem.  He  is  deposed,  anu  *t  is  as  representatives  of  a 
different  theory  —  that  of  a  king  below  the  law  —  that  the 
House  of  Lancaster  is  to  reign.  The  king,  as  Bracton  had 
said  more  than  a  century  ago,  has  above  him  the  law  which 
makes  him  king,  'this  principle  is  stated  repeatedly  and 
very  clearly  by  the  greatest  English  writer  on  law  of  the 
fifteenth  century.  Sir  John  Fortescue  was  made  chief  justice 
of  the  King's  Bench  in  1422  and  he  served  the  House  of 
Lancaster  in  good  and  evil  fortune  until  all  was  lost.  He 
did  not  die  until  after  1476.  His  most  famous  work,  De 
Laudibus  Legum  Angliae,  was  written  about  1469.  In  this 
and  in  other  treatises  he  keeps  repeating  that  the  king  of 
England  is  no  absolute  monarch.  The  state  of  France  gives 
him  an  opportunity  of  explaining  by  way  of  contrast  what 
he  means.  The  king  of  France  is  an  absolute  monarch  — 
in  France  that  saying  of  the  civil  law  holds  good,  quod 
principi  placuit  legis  habet  vigorem.  But  it  is  not  so  in 
England.  'Ther  bith  ij  kindes  of  kingdomes  of  the  wich  that 
on  is  a  lordship  callid  in  laten  dominium  regale  and  that  other 
is  callid  dominium  politicum  et  regale.  And  thai  diversen  in 
that  the  first  kynge  may  rule  his  peple  bi  suche  lawes  as  he 
makyth  himself,  and  therefor  he  may  sette  uppon  them  tayles 
and  other  imposicions,  such  as  he  woe  hymself,  without  their 
assent.  The  secounde  king  may  not  rule  his  peple  bi  other 
lawes  than  such  as  thai  assenten  unto.  And  therefore  he  may 
sett  upon  them  non  imposicions  without  thair  own  assent2/ 

1  Stubbs,  Constitutional  History,  vol.  II,  §268. 

2  Fortescue,   Governance  of  England*   ed.    Plummer,    p.    109  ;    ci.   also   De 
Laudibu$i  cc.  34  —  7. 


II  The  Council  199 

The  kingdom  of  England  is  of  this  second  kind.  This  doctrine 
Fortescue  maintained  even  after  the  hopes  of  the  Lancastrian 
party  were  at  an  end  and  he  himself  had  made  his  peace 
with  Edward  IV — and  I  believe  we  may  say  that  it  was  the 
generally  accepted  doctrine  of  the  time.  Edward,  however 
arbitrary  might  be  his  acts,  asserted  no  theoretic  claim  to  be 
above  the  law.  The  same  may  be  said  of  Henry  VII.  The 
danger  during  the  whole  Tudor  period  is  not  that  the  king 
will  assert  such  a  principle  but  that  practically  he  will  be  able 
to  get  exactly  what  he  wants  by  means  of  submissive  and 
subservient  parliaments.  It  is  the  fashion  now  to  speak  of 
Edward  IV  as  beginning  *  the  New  Monarchy/  and  there  is 
point  enough  in  this  title — but  the  legal  limits  of  royal  power 
erected  in  earlier  centuries  remain  where  they  were.  In  the 
changed  circumstances  the  king  is  beginning  to  find  out  that 
parliamentary  institutions  can  be  made  the  engines  of  his  will. 
We  turn  from  the  king  to  the  king*s  council,  the  early 
history  of  which  we  have  already  traced1.  The  king  had  at 
his  side  a  body  of  sworn  councillors.  During  the  fourteenth 
century  this  body  becomes  definitely  distinct  from  parliament 
on  the  one  hand,  and  from  the  Courts  of  Law  on  the  other.  The 
composition  of  the  council  depends  as  a  general  rule  on  the 
king's  will,  though  occasionally  parliament  has  interfered  with 
it.  We  have  the  list  of  the  council  as  it  was  in  1404  under 
Henry  IV;  it  contains  three  bishops,  nine  peers,  seven  com- 
moners, in  all  nineteen  persons.  They  can  be  dismissed  by 
the  king  whenever  he  pleases  ;  they  are  sworn  to  advise  the 
king  according  to  the  best  of  their  cunning  and  discretion. 
They  receive  salaries  of  large  amount.  They  meet  constantly ; 
the  king  is  not  usually  present  at  their  deliberations.  The 
proceedings  of  the  council  are  committed  to  writing;  this 
begins  at  least  as  early  as  1386 — the  proceedings  from  that 
year  until  1460  have  been  printed  by  the  Record  Commis- 
sioners. The  function  of  the  council,  we  may  say,  is  to 
advise  the  king  upon  every  exercise  of  the  royal  power. 
Every  sort  of  ordinance,  licence,  pardon  that  the  king  can 
issue  is  brought  before  the  council.  Sometimes  parliament 

1  See  p.  91 1  and  Dicey's  Privy  Council. 


2OO  Constitutional  History  PERIOD 

trusts  it  with  extraordinary  powers  of  legislation  and  taxation, 
allows  it  to  suspend  or  dispense  with  statutes,  to  raise  loans, 
and  the  like.  It  is  to  the  advice  of  the  council  that  the  king 
looks  in  all  his  financial  difficulties,  which  are  many. 

But  though  the  royal  council  has  thus  become  a  perma- 
nent part  of  the  machinery  of  government,  and  a  most 
important  part,  still  it  is,  we  may  say,  an  unstable  institution 
—that  is,  its  real  power  is  constantly  changing  fronva?ave  t$ 
time.  Under  a  strong  king  it  is  really  no  check  upon  his 
will;  he  can  appoint  it  and  he  can  dismiss  it;  he  is  not 
obliged  to  take  its  advice,  he  is  not  even  obliged  to  ask  its 
advice.  This  Henry  VII  has  discovered ;  he  does  not  bring 
the  weightiest  matters  before  the  council,  or  does  not  do  so 
uflTii  he  has  made  up  his  own  mind :  the  council  thenTias  to 
register  foregone  conclusionsT  But  under  weak  kings  itTTas 
been  otherwise,  and  uhder  infant  kings  the  council  has  ruled 
England.  It  will  be  no  digression  therefore  if  we  say  a  little 
of  royal  minorities. 

Since  the  Norman  Conquest  there  have  been  three  cases. 
Henry  III  was  nine  years  old  when  he  began  to  reign; 
Richard  II  eleven  years;  Henry  VI  was  but  nine  months. 
We  have  further  to  remember  that  during  a  considerable 
part  of  his  reign  Henry  VI  was  perfectly  imbecile.  When 
Henry  III  succeeded  to  the  throne  there  was  no  member  of 
the  royal  house  capable  of  urging  any  claim  to  be  regent 
This  is  an  important  fact,  for  it  gave  rise  to  an  important 
precedent.  The  barons,  in  whose  power  the  young  king  was, 
appointed  William  Marshall,  Earl  of  Pembroke,  rector  regis 
et  regni>  and  associated  certain  councillors  with  him.  We 
have  already  seen  how  it  is  to  this  time  that  we  can  definitely 
trace  the  existence  of  a  concilium  Regis  that  is  distinct  from 
the  curia  Regis.  Within  three  years  the  regent  died.  No- 
one  was  appointed  to  fill  his  place,  but  the  government  was 
carried  on  by  the  council,  at  the  head  of  which  stood  Hubert 
de  Burgh,  the  chief  justiciar.  Our  public  law  had  made 
great  advances  before  the  next  case  arose,  the  accession  of 
Richard  II.  On  his  coronation  the  assembled  magnates 
appointed  no  regent,  but  named  a  council  of  government. 
Before  long,  troubles  set  in  and  the  king  had  to  submit  to  the 


II  Minorities  201 

restraint  of  a  council  appointed  by  parliament ;  not  until  he 
was  three-and-twenty  was  he  able  to  free  himself  from  this 
control.  When  Henry  VI  succeeded  his  father  we  hear  of  a 
definite  claim  to  the  regency.  His  uncle,  the  Duke  of  Glou- 
cester, claimed  the  regency  both  as  next  of  kin  and  under  the 
will  of  the  late  king.  But  this  claim  was  disallowed  by  the 
lords  assembled  in  parliament ;  after  searching  for  precedents 
they  pronounced  that  he  could  not  claim  the  regency  on  the 
score  of  relationship,  and  that  Henry  V  could  not  dispose  of 
the  government  of  the  kingdom  by  his  will.  An  act  of 
Parliament  constituted  the  Duke  of  Bedford  protector  and 
defender  of  the  realm  and  church  of  England.  The  assent  of 
the  king  to  this  act  of  parliament  must  of  course  have  been  a 
mere  fiction — he  was  but  a  few  months  old.  This  precedent 
sanctioned  what  has  since  been  regarded  as  law,  namely,  that 
our  law  makes  no  provision  for  any  regency,  that  the  king's 
nearest  kinsman  has  not  as  such  any  claim  to  be  regent,  that 
a  king  cannot  by  his  will  declare  effectually  who  is  to  govern 
England  after  his  death.  If  such  a  case  arises  parliament 
must  provide  for  it.  Further,  the  king,  no  matter  how  young 
he  is,  can  give  his  assent  to  an  act  of  parliament — this,  it  is 
true,  may  be  a  fictitious  assent,  but  a  king  is  bound  by  the 
acts  of  parliament  done  during  his  minority :  obviously  this 
doctrine  has  difficulties  before  it,  with  which  however  we  are 
not  at  this  moment  concerned.  '  During  the  minority  of 
Henry  VI  the  council  was  a  real  council  of  regency  and  by 
no  means  a  mere  consultative  body  in  attendance  on  the 
protector.  It  defined  its  own  power  in  the  statement  that 
upon  it  during  the  king's  minority  devolved  the  exercise 
and  execution  of  all  the  powers  of  sovereignty1.1  But  then 
when  Henry  came  of  age  the  council  became  once  more  a 
new  instrument  in  the  hands  of  the  king,  or  of  those  who, 
for  the  time  being,  could  gain  an  ascendancy  over  the  king. 
In  1454  Henry  became  quite  imbecile ;  it  was  impossible 
to  get  a  word  from  him.  The  lords  chose  the  Duke  of 
York  protector  and  defender  of  the  realm ;  this  resolution 
was  embodied  in  an  act  to  which  the  commons  gave  their 

1  Stubbs,  Constitutional  History,  vol.  in,  §  689. 


2O2  Constitutional  History  PERIOD 

assent;  the  king  had  just  sense  enough  to  place  the  great 
seal  in  the  hands  of  the  Earl  of  Salisbury,  and  in  this  way 
the  royal  assent  was  given.  In  the  next  year  the  king 
recovered  his  senses,  but  in  a  few  months  he  again  fell  ill, 
and  the  same  ceremony  of  appointing  a  protector  by  act  of 
parliament  was  enacted. 

Under  Edward  IV  and  the  Tudors  the  council  ceases  to  be 
any  real  restraint  upon  the  king.  Its  power,  it  is  true,  increases, 
but  this  merely  means  an  increase  of  the  royal  power.  It  is 
powerful  against  all  others,  but  weak  against  tne  king.  It  is 
but  an  assembly  of  the  king's  servants,  whom  he  appoints 
and  dismisses  as  pleases  him  best,  whom  he  consults  when  it 
pleases  him,  and  only  when  it  pleases  him.  Henry  VII,  says 
Bacon,  in  his  greatest  business  imparted  himself  to  none, 
except  it  were  to  Morton  and  Fox.  No  law  compelled  him 
to  ask  advice;  all  th^ powers  which  any  council  could  exercise 
were  simply  the  king's  powers,  powers  which  the  king  himself 
might  exercise  if  and  when  he  pleased. 

A  certain  limitation  to  this  principle  was  found  in  the 
practice  regarding  the  king's  seals.  From  the  Norman  days 
onward  the  king's  will  had  been  signified  by  writs,  charters, 
letters  patent,  letters  close  and  so  forth,  sealed  with  the  royal 
seal.  No  document  without  the  king's  seal  could  be  regarded 
as  an  authentic  expression  of  the  king's  command.  The  king's 
Great  Seal  was  committed  to  the  Chancellor — he  was  the  head 
of  the  whole  secretarial  establishment,  (as  we  now  might  say) 
the  Secretary  of  State  for  all  departments.  When  in  the 
middle  of  the  thirteenth  century  the  chief  justiciarship  came 
to  an  end,  the  chancellorship  grew  in  dignity  and  in  power. 
During  the  later  Middle  Ages  and  far  on  through  the  Tudor 
time  the  chancellor  is  the  king's  first  minister — prime  minister. 
The  possession  of  the  royal  seal  makes  his  office  of  the  first 
importance.  Gradually  we  begin  to  hear  of  other  seals 
besides  the  great  seal.  The  chancellor  has  so  much  miscel- 
laneous work  to  perform  as  a  judge  and  otherwise,  so  much 
routine  business  requires  the  great  seal,  that  for  matters 
directly  affecting  the  king  a  privy  seal  is  in  use.  The  king 
under  his  privy  seal  gives  directions  to  the  chancellor  as  to 
the  use  of  the  great  seal.  Then  this  privy  seal  is  committed 


II  Doctrine  of  the  Royal  Seals          203 

to  the  keeping  of  an  officer,  the  Keeper  of  the  Privy  Seal. 
In  course  of  time  a  yet  more  private  secretary  intervenes 
between  the  king  and  these  high  officers  of  state,  namely,  the 
king's  clerk  or  king's  secretary,  as  he  comes  to  be  called,  who 
keeps  the  king's  signet  In  the  Tudor  time  we  find  two 
king's  secretaries,  who  before  the  end  of  that  time  are  known 
a$  secretaries  of  state.  A  regular  routine  establishes  itself — 
*'  ^lfe%*s  signed  by  the  king's  own  hand,  the  royal  sign 
maai;«  /Vf^4  countersigned  by  the  secretary  are  sent  to  the 
keeper  of  i^e*ffc&M^^l,  as  instructions  for  documents  to  be 
issued  under  the  pnff%eM,  and  these  again  serve  as  instruc- 
tions for  the  chancellor  to  usue  documents  bearing  the  great 
seal  of  the  realm.  This  practice  begets  a  certain  ministerial 
responsibility  for  the  king's  acts.  The  law  courts  will  not 
recognize  any  document  as  expressing  the  royal  will  unless 
it  bears  the  great  seal  or  at  least  the  piSvy  seal.  This  insures 
that  some  minister  will  have  committed  himself  to  that 
expression  of  the  royal  will.  The  ministers  themselves  are 
much  concerned  in  the  maintenance  of  this  routine;  they 
fear  being  called  in  question  for  the  king's  acts  and  having 
no  proof  that  they  are  the  king's  acts.  The  chancellor  fears 
to  affix  the  great  seal  unless  he  has  some  document  under 
the  privy  seal  that  he  can  produce  as  his  warrant ;  the  keeper 
of  the  privy  seal  is  anxious  to  have  the  king's  own  hand- 
writing attested  by  the  king's  secretary.  For  the  king  again 
this  is  a  useful  arrangement ;  it  is  the  duty  of  these  officers  to 
remember  the  king's  interests,  to  know  how  the  king's  affairs 
stand ;  as  the  king's  affairs  grow  more  manifold,  division  of 
labour  becomes  necessary ;  there  must  be  an  officer  at  the 
head  of  every  department  bound  to  see  that  the  king  is  not 
cheated  or  prejudiced,  and  the  danger  of  his  interests  being 
neglected  is  decreased,  if  in  the  ordinary  course  of  business 
his  letters  have  to  pass  through  several  different  hands.  Thus, 
even  when  there  is  on  the  throne  a  strong-willed  king  with  a 
policy  of  his  own,  ministers  are  necessary  to  him.  At  present 
we  may  say  this  is  a  matter  of  convenience,  but  in  this 
doctrine  of  the  royal  seals  we  can  see  the  foundation  for  our 
modern  doctrine  of  ministerial  responsibility — that  for  every 
exercise  of  the  royal  power  some  minister  is  answerable. 


204  Constitutional  History  PERIOD 

C.     Administration  of  Justice. 

Hitherto  we  have  said  nothing  of  what  in  general  estima- 
tion constitutes  the  most  important  side  of  the  council's 
history,  the  history  of  its  judicial  powers ;  but  to  this  we 
shall  best  come  by  first  taking  a  short  review  of  the  adminis- 
tration of  justice  as  a  whole. 

More  and  more  the  king's  courts  have  become  the  only 
courts  of  the  first  importance.  Of  the  feudal  and  the  ancient 
communal  courts  we  need  say  but  very  little :  by  one  means 
and  another  business  has  been  drawn  awny  irom  them.  That 
an  action  for  freehold  land  should  be  begun  in  the  court 
baron  of  the  lord  of  whom  the  land  is  holden  is  a  principle 
unrepealed — it  remains  indeed  unrepealed  until  I8331;  but 
many  ways  of  evading  it  have  been  devised  by  the  ingenuity 
of  lawyers,  and  it  has  m  truth  become  a  dead  letter.  We  may 
indeed  doubt  whether  in  Henry  VI  Ts  reign  there  are  many 
courts  baron  which  have  more  than  a  nominal  existence. 

Even  the  customary  court  of  the  manor  has  suffered  a 
heavy  blow.  It  was,  you  will  remember,  the  court  for  those 
who,  whether  personally  villeins  or  no,  held  their  land  by 
villein  tenure.  In  Henry  VI Ts  day  personal  villeinage,  owing 
to  causes  which  we  cannot  here  discuss,  has  practically  become 
extinct  But  further,  and  this  is  of  great  importance,  the 
king's  courts  have  at  length  decided  to  protect  the  tenant  in 
villeinage  in  his  holding.  He  is  now  getting  a  new  name, 
derived  from  those  copies  of  the  court  rolls  which  serve  as 
evidence  of  his  title ;  he  is  a  tenant  by  copy  of  court  roll,  in 
shorter  phrase  a  copyholder.  At  length  the  king's  courts 
have  decided  that  he  shall  no  longer  be  left  with  merely  such 
protection  in  his  holding  as  the  manorial  courts  afford — if  the 
lord  contrary  to  the  custom  of  the  manor  turns  him  out,  he 
shall  have  an  action  against  his  lord,  an  action  of  trespass  in 
the  king's  courts.  In  1457  we  get  a  hint  that  this  is  so;  in 
1467,  and  again  in  1481,  it  is  definitely  said  that  the  copy- 
holder can  bring  an  action  against  his  lord  if  ejected  contrary 
to  the  manorial  custooi.  The  manorial  custom  thus  becomes 
a  recognized  part  of  the  law  of  the  land,  to  be  enforced  in 

1  3  and  4  Will.  IV,  c.  27. 


1 1      Decay  of  Feudal  and  Communal  Courts  205 

the  king's  court.  This  of  course  was  a  serious  blow  to 
the  manorial  courts — contentious  business  was  taken  from 
them — anyone  who  claimed  copyhold  land  instead  of  going 
to  them  would  go  to  the  king's  courts,  where  he  would  get  a 
more  certain  justice.  A  great  deal  of  business  remained,  and 
still  in  theory  remains,  for  the  customary  court  to  do.  The 
copyholder  when  he  wishes  to  convey  his  land  must  surrender 
:  r  into  the  hands  of  the  lord,  who  then  admits  a  new  tenant ; 
such  surtcnders  and  admittances  took  place  in  court — in 
theory  tuey  >  ok  place  in  court  until  very  lately — but  all  this 
business  became  more  au.<4  more  a  matter  of  routine  now  that 
the  king's  courts  had  *uHy  recognized  the  rights  of  the  copy- 
hold tenant.  If  the  customary  dues  were  paid  the  lord  had 
no  choice  but  to  accept  the  surrender  and  admit  the  new 
tenant,  and  these  surrenders  and  admittances  were  in  fact 
accomplished  in  what  only  by  fiction^  and  figure  of  speech 
could  be  called  a  court — practically  there  was  but  a  trans- 
action between  the  tenant  and  the  lord's  steward.  However, 
purprQsent  point  is  that  before  the  end  of  Henry  VTl's  ^av» 
owing  rathei1  TO  the  ifl^emous  devices  of  lawyers  in  se^n^T  of 
business^  than  to  anv  legislation,  the  t^anorj^  Cpllrftf  Hf* 
ceased  to  be  of  any  great  importance  as  trihuPa1g  fnr  fiPn- 
tentious  business. 

As  regards  what  I  have  called  the  communal  courts,  we 
have  seen  that  before  the  end  of  Edward  I's  reign  a  rule  had 
been  established  which  made  them  courts  for  small  cases  :  they 
were  not  to  entertain  cases  in  which  more  than  40  shillings 
was  at  stake1.  In  Henry  VI I's  time  the  county  court  was 
still  held  month  by  month,  and  the  sum  of-rj^shillings  had 
not  yet  become  a  trivial  sum ;  but  long  before  this  the  free- 
holders of  the  shire  had  been  allowed  to  discharge  their  duty 
of  appearing  at  the  monthly  court  by  sending  their  attorneys 
instead  of  coming  in  person,  and  it  is  very  probable  that  the 
judicial  business  was  practically  transacted  by  the  sheriff 
without  much  interference  on  the  part  of  the  freeholders  or 
their  representatives.  Trial  by  jury  has  not,  we  see,  made  its 
way  into  the  procedure  of  these  courts ;  they  still  make  use 
of  the  ancient  system  of  compurgation. 

1  See  p.  133. 


206  Constitutional  History  PERIOD 

But  we  have  now  to  notice  a  new  institution,  which  has 
grown  up  since  the  days  of  Edward  I,  an  institution  which  is 
to  play  a  very  large  part  both  in  the  administration  of  justice 
and  in  local  government,  namely,  the  justices  of  the  peace.  In 
the  thirteenth  century  we  hear  occasionally  of  knights  of  the 
shire  being  assigned,  that  is,  appointed,  to  keep  the  peace — 
sometimes  they  seem  to  be  elected  by  the  county  court. 
Their  duty  seems  to  be  that  of  assisting,  perhaps  also  of 
checking,  the  sheriff  in  his  work  of  preserving  the  peace, 
arresting  malefactors,  and  the  like.  Then  immediately  after 
the  accession  of  Edward  III  a  statute  is  passed  (1327, 
i  Edw.  Ill,  stat  2,  c.  1 6)  to  the  effect  that  in  every  shire 
good  and  lawful  men  shall  be  assigned  to  keep  the  peace. 
In  1330  (4  Edw.  Ill,  c.  2)  it  is  repeated  that  good  and  lawful 
men  shall  be  assigned  in  every  county  to  keep  the  peace ; 
those  who  are  indicte^t  before  them  are  to  be  imprisoned,  and 
they  are  to  send  tlie  indictments  to  the  justices  of  gaol 
delivery.  These  cwtodes  pacts,  conservators  of  the  peace, 
have  therefore  already  power  to 'receive  indictmeats,  the 
accusations  preferred  by  juries,  but  they  do  not  as  yet  try 
the  indicted ;  they  commit  them  to  prison  to  take  their  trial 
before  the  king's  judges  on  their  circuits.  In  1360  another 
step  is  taken.  A  statute  (34  Edw.  Ill,  c.  i) 'repeats  that  in 
every  county  there  shall  be  assigned  for  the  keeping  of  the 
peace  one  lord  and,  with  him,  three  or  four  of  the  most 
worthy  of  the  county,  with  some  learned  in  the  law,  and 
they  are  to  have  power  to  arrest  malefactors,  to  receive  indict- 
ments against  them,  and  to  hear  and  determine  at  the  king's 
suit  all  manner  of  felonies  and  trespasses  done  in  their  county 
according  to  the  law  and  customs  of  the  realm.  The  con- 
servators of  the  peace  are  now  authorised  not  merely  to 
receive  indictments,  but  to  try  the  indicted.  Very  soon  after 
this,  having  been  trusted  with  these  high  judicial  powers,  they 
come  to  be  known  as  justices;  they  are  no  longer  mere 
conservators  of  the  peace,  they  are  justicggjgf  wthe  jgeace.  In 
1388  it  is  directed  by  statute  that  they  are  to  hold  their 
sessions  four  times  a  year — this  is  the  origin  of  those  Quarter 
Sessions  of  justices  of  the  peace  which  are  still  held  in  our 
own  day.  Now  this  new  institution  soon  becomes  very  popular 


II  Justices  of  the  Peace  207 

with  parliament  and  flourishes;  parliament  constantly  adds 
to  the  powers  of  these  justices ;  they  are  in  truth  men  drawn 
from  the  same  class  of  country  gentlemen  which  supplies 
parliament  with  knights  of  the  shire.  For  a  long  time  there 
are  persistent  demands  that  the  justices  shall  be  elected  by 
the  freeholders ;  this  demand  finds  expression  in  many 
petitions  presented  by  parliament  to  Edward  III.  But  on 
Ihis  point  the  king  will  not  give  way,  he  will  keep  the  appoint- 
ment CM  u.  Utces  in  the  hands  of  himself  and  his  council.  It 
is  so  common Ti^  ;  :;-days  to  regard  our  constitutional  history 
as  one  long  triumpu  ^i.  ni*  elective  principle,  that  it  is  well  to 
notice  that  at  two  points  this  principle  was  persistently  urged 
and  finally  defeated.  Our  ancestors  wanted  elected  sheriffs, 
and  they  wanted  elected  justices  of  the  peace;  to  this  day  our 
sheriffs  and  our  justices  are  appointed  by  the  king,  and  I  do 
not  suppose  that  one  would  wish  them  Ejected.  The  justices 
of  the  fourteenth  century  were  paid  wages — four  shillings 
for  each  day  of  session  ;  they  were  entitled  to  these  wages 
until  very  lately ;  here  again  the  great  change  in  the  value  of 
money  which  took  place  in  the  sixteenth  century  has  had 
important  effects  on  our  constitutional  law.  In  Richard  IFs 
day  a  form  of  commission  was  settled  which,  in  all  the  most 
r/iferial  respects,  is  that  still  in  use.  The  king  assigns  certain 
peibons  by  name  to  be  his  justices  in  a  particular  county; 
he  empowers  every  one  of  them  to  keep  the  peace  and  to 
arrest  malefactors,  and  he  empowers  every  two  of  them  to 
hold  sessions  for  the  trial  of  indicted  persons. 

Now  at  the  period  with  which  we  are  dealing  these  are 
the  main  duties  of  the  justices  of  the  peace : — (i)  they  are  to 
keep  the  peace  by  putting  down  riots,  arresting  offenders  and 
so  forth,  and  (2)  in  their  quarter  sessions  they  are  to  try 
indicted  persons — the  trial  is  a  formal  trial  by  jury.  Their 
power  extends  over  pretty  well  all  indictable  offences  except 
treason  only,  but  the  more  difficult  cases  they  are  directed  to 
reserve  for  the  king's  judges  on  their  circuits.  These  are 
their  main  duties,; but  parliament  has  been  gradually  adding 
many  other  duties  of  a  very  miscellaneous  character.  In 
particular,  parliament  has  long  been  engaged  on  elaborate 
legislation  about  the  rate  of  wages.  We  have  to  remember 


208  Constfaitional  History  PERIOD 

the  Black  Death  of  1349,  one  of  the  greatest  economic  catas- 
trophies  in  all  history ;  the  guess  has  been  made  that  it 
destroyed  not  much  less  than  half  the  population.  It  utterly 
unsettled  the  medieval  system  of  agriculture  and  industry : 
wages  of  course  rose  enormously ;  parliament  endeavoured 
by  statute  after  statute  to  keep  them  down,  to  fix  a  legal  rate 
of  wages.  This  attempt  produced  many  of  the  grievances 
which  burst  into  flame  in  the  revolt  of  1381,  'one  of  the  most 
portentous  phenomena  to  be  found  in  the  whole  of  our  history.' 
But  still  parliament  did  not  abandon  the  effort :  tu  gain  its  end 
it  endowed  the  justices  of  the  peace,  representatives  of  the 
landowning  class,  with  very  large  powers  of  compelling  men 
to  work  for  the  legal  wage.  After  a  while,  in  1427,  it  even 
delegated  to  these  justices  the  power  of  fixing  the  legal  rate : 
the  justices  of  the  peace  were  the  justices  of  labourers  also — 
in  our  language  they  have  not  merely  judicial  powers,  they 
have  governmental  powers  also.  And  this  matter  of  wages, 
though  it  is  the  most  important,  is  by  no  means  the  only 
specimen  of  governmental  duties  cast  upon  the  justices  of  the 
peace.  More  and  more  the  quarter  sessions  of  the  peace 
begin  to  supplant  the  old  county  court  as  the  real  governing 
assembly  of  the  shire ;  the  old  county  court  sinks  into  a  mere 
tribunal  for  small  civil  suits.  In  1494  we  find*that  the  justices 
have  even  got  a  control  over  the  sheriff:  by  u  Hen.  VII, 
c.  15,  they  are  empowered  to  entertain  complaints  against  the 
sheriff  as  to  extortions  practised  by  him  in  the  county  court, 
and  to  convict  him  and  his  officers  in  a  summary  fashion. 
This  power  to  convict  persons  in  a  summary  fashion,  that  is 
to  say,  without  trial  by  jury,  is,  we  observe,  being  given  to 
justices  in  a  number  of  cases.  The  practice  begins  in  the 
fifteenth  century  and  becomes  very  usual  in  the  sixteenth: 
parliament  is  discovering  that  for  petty  offences  trial  by  jury 
is  a  much  too  elaborate  procedure.  An  instance  or  two  may 
be  given : — 

In  1433  (XI  Hen.  VI,  c.  8)  the  justices  are  empowered  to 
punish  in  a  summary  way  those  who  use  false  weights  or 
measures ;  in  1464  we  have  an  elaborate  statute  (4  Edw.  IV, 
c.  i)  about  the  making  of  cloth,  regulating  matters  between 
master  and  man  ;  upon  complaint  made  of  any  offence  against 


II  Summary  Penal  Jurisdiction          209 

this  ordinance,  the  justices  of  the  peace  may  send  for  the 
party  and  examine  him,  and  if  the  party  by  examination  or 
other  due  proof  be  found  guilty  he  is  to  be  fined ;  in  1477 
(17  Edw..IV,  c.  4)  we  have  a  similar  statute  about  the  making 
of  tiles;  Jin  1503  the  justices  are  to  punish  those  who  take 
young  herons  from  their  nests — they  are  to  call  the  suspected 
person  before  them  and  by  their  discretion  examine  him. 
The  statutes,  of  which  these  are  specimens,  seldom  lay  down 
any  rules  of  procedure,  only  it  is  made  clear  that  there  need 
not  be  trial  by  jury,  and  that  the  suspected  persons  may  be 
questioned. 

We  see  here  then  a  yet  young  but  very  strong  and  healthy 
institution,  one  which  has  a  great  future  before  it.  Country 
gentlemen  commissioned  by  the  king  are  to  keep  the  peace 
of  the  shire,  are  to  constitute  a  court  of  quarter  sessions  with 
high  criminal  jurisdiction,  are  to  punish  thfe  pettier  offences  in 
a  summary  way,  are  to  exercise  miscellaneous  governmental 
powers  and  police  powers — to  fix  the  legal  rate  of  wages  for 
example.  They  are  to  be  substantial  men.  In  1439  a  statute 
(18  Hen.  VI,  c.  n)  says  that  they  are  to  have  lands  or 
tenements  to  the  value  of  £20  a  year.  At  present  their  number 
is  small,  some  six  or  eight  for  the  shire:  during  the  Tudor 
time  it  increases.  *The  Tudor  kings  find  here  a-useful  institu- 
tion for  the  purposes  of  their  strong  policy — for  from  the  first 
a  stern  check  has  been  kept  upon  these  justices ;  not  only 
have  the  courts  of  law  been  ready,  perhaps  eager,  to  notice 
any  transgression  by  the  justices  of  their  statutory  powers 
(for  the  old  courts  will  not  suffer  any  rivalry,  and  will  put  the 
narrowest  construction  upon  any  statute  which  authorizes  any 
departure  from  the  procedure  of  the  common  law),  but  also 
these  justices  are  specially  under  the  eye  of  the  royal  council. 
A  statute  of  1388  (12  Ric.  II,  c.  10),  when  giving  them 
certain  new  powers  of  dealing  w^th  labourers,  threatens  them 
with  punishment  at  the  cliscreti6n  of  the  king's  council  if  they 
do  not  hold  their  sessions.  We  shall  have  much  more  to  say 
of  justices  of  the  peace  hereafter. 

The  three  old  courts — the  three  superior  courts  of  common 
law,  King's  Bench,  Common  Pleas  and  Exchequer — have 
grown  in  power  and  dignity.  The  number  of  the  judges  is 

*M.  14 


2io  Constittitional  History  PERIOD 

small,  though  it  has  not  yet  become  fixed  at  the  sacred 
twelve — and  they  are  now  erudite  lawyers,  men  who  have 
made  their  fame  by  practising  at  the  bar.  The  line  of 
demarcation  between  the  provinces  of  these  three  courts  is 
not  so  plain  as  once  it  was,  for  by  the  use  of  ingenious  fictions 
the  King's  Bench  has  been  stealing  business  from  the  Common 
Pleas,  and  the  Exchequer  is  beginning  to  follow  its  example. 
But  to  one  or  the  other  of  these  three  courts  goes  almost  all 
of  the  civil  litigation  of  the  realm — all  that  the  local  courts  are 
incompetent  to  entertain.  The  King's  Bench  is  the  supreme 
court  for  criminal  cases,  and  the  Exchequer  still  keeps  its 
monopoly  of  all  cases  touching  the  royal  revenue.  These 
courts 'have  by  this  time  become  purely  judicial  institutions, 
they  have  little  or  nothing  to  do  with  governmental  work ;  it 
is  their  function  to  hear  and  determine  causes  according  to 
the  law  of  the  land )  and  they  are  very  conservative  of  all  the 
formalities  of  their  procedure.  Already  the  Year  Books 
contain  vast  masses  of  decided  cases,  and  these  cases  are 
treated  as  binding  authorities. 

Then  again  the  ambulatory  or  visitatorial  courts  have  been 
maintained.  Twice  a  year  or  so  the  counties  are  visited  by 
justices,  whose  commissions  enable  them  to  deliver  the  gaols 
and  to  hear  and  determine  all  the  criminal  business,  or  all  such 
part  of  it  as  is  not  disposed  of  by  the  justices  of  the  peace  at 
their  quarter  sessions — whose  commissions  enable  them  also 
to  take  the  trial  of  dvil^fasps  jyhich  are  depending  in  the 
king's  courts  jtQSfeatminsten  A  great  deal  of  this  work  is 
done  by  the  judges  of  35? three  common  law  courts — indeed, 
by  statute,  much  of  it  must  now  be  done  by  them — though 
other  persons,  landowners  of  the  county,  are  associated  with 
them  in  the  commissions.  The  work  of  these  itinerant  justices 
has  now  become  purely  judicial  work — to  preside  at  trials,  to 
hear  and  decide  causes  ;  they  no  longer,  like  their  predecessors 
of  the  twelfth  century,  add  to  this  duty  that  of  looking  after 
the  royal  revenue  and  conserving  the  king's  interests.  What 
is  more,  we  no  longer  find  that  the  whole  county  is  summoned 
to  meet  them,  with  all  its  hundreds,  boroughs  and  town- 
ships represented.  A  single  grand  jury  now  represents  the 
county:  the  older  plan  had  been  found  very  burdensome, 


II  Development  of  the  Jitry  211 

and  seems  to  have  been  abandoned  late  in  the  fourteenth 
century 

A  great  change  has  been  coming  over  trial  by  jury  since 
we  last  looked  at  it,  and  trial  by  jury  has  become  of  great 
importance  in  national  history.  The  change  has  been  a  slow 
one,  and  it  is  hardly  yet  completed.  Turning  first  to  civil 
cases  we  may  formulate  the  change  thus: — the  twelve  jurors 
are  ceasing  to  be  witnesses  and  are  becoming  judges  of  fact; 
it  is  no  longer  the  theory  that  before  they  come  into  court 
they  will  know  the  truth  about  the  matters  at  issue,  but  when 
they  come  into  court  the  parties  put  evidence  before  them, 
produce  witnesses  who  testify  in  the  judge's  hearing.  We  see 
that  this  is  so  from  a  book  already  mentioned :  Sir  John 
Fortescue,  De  Laitdibus  Legum  Angliae.  He  describes  how 
'  each  of  the  parties  by  themselves  or  their  .counsel  in  presence 
of  the  court,  shall  declare  and  lay  open  , to  the  jury  all  and 
singular  the  matters  and  evidences  whereby  they  think  they 
may  be  able  to  inform  the  court  concerning  the  point  in 
question,  after  which  each  of  the  parties  has  a  liberty  to 
produce  before  the  court  all  such  witnesses  as  they  please1* — 
in  short,  trial  by  jury  is  taking  that  form  in  which  we  now-a- 
days  know  it,  the  jurors  try  questions  of  facL^  Still,  in 
Fortescue's  book  the  change  is  not  yet  perfect,  he  sometimes 
speaks  of  the  jurors  as  though  they  were  witnesses — they  are 
drawn  from  the  district  in  which  the  events  took  place,  in 
order  that  they  may  bring  their  own  knowledge  to  bear  upon 
the  question  ;  if  they  give  a  false  verdict  they  are  liable  to  be 
attainted,  the  case  can  be  tried  over  again  by  twenty-four 
jurors,  and  if  the  new  verdict  contradicts  the  old,  the  first 
jury  of  twelve  is  very  severely  punished.  In  civil  cases  this 
mode  of  trial  has  become  almost  universal,  though  there  are 
still  certain  cases  respecting  property  in  land  in  which  trial 
by  battle  can  be  claimed,  and  there  are  some  other  cases  in 
which  recourse  is  still  had  to  compurgation. 

The  commonest  procedure  in  criminal  cases  involves  the 
use  of  two  juries,  an  indicting  and  a  trying  jury,  or,  as  we 
say,  a  grand  and  a  petty  jury.  The  grand  jury  is  a  body  of 
twenty-three  persons  represent  n^-thf*  rnnnty,  sworn  to  present 
criminals.  In  the  past  the  theory  has  been  that  such  a  jury 

1  c.  xxvi. 

14—2 


212  Constitutional  History  PERIOD 

accuses  men  of  its  own  knowledge,  and,  even  in  our  own  day, 
this  form  is  preserved — an  indictment  even  in  our  own  day 
states  that  the  jurors  say  upon  their  oaths  that  A,  of  malice 
aforethought  did  slay  and  murder  B.  As  a  matter  of  fact, 
however,  what  happens  now  is  this — and  we  may  perhaps 
.carry  back  the  change  as  far  as  Henry  VI Ts  day — some 
person  who  believes  that  A  has  committed  a  crime  goes 
before  the  grand  jury  and  profers  a  bill  of  indictment,  a 
document  stating  that  A  has  murdered  B.  The  grand  jurors 
hear  the  evidence  for  the  prosecution,  and  if  they  think  that 
this  makes  it  probable  that  A  is  guilty,  then  without  hearing 
any  evidence  for  the  defence  they  write  on  the  bill  'a  true 
bill/  and  then  A  has  to  take  his  trial  before  a  petty  jury ;  if, 
however,  they  think  that  there  is  no  ground  for  suspicion,  they 
write  'no  true  bill1 — the  old  phrase  was  'Ignoramus' — we 
know  nought  of  this/~the  bill  is  said  to  be  ignored,  and  A  goes 
free,  though  he  is /liable  to  be  indicted  another  time  for  the 
same  offence: — he  has  had  no  trial,  and  is  not  acquitted.  A 
majority  of  the  body  of  twenty-three  grand  jurors  decides 
whether  the  bill  shall  be  ignore'd  or  no.  So  much  as  to  the 
grand  jury. 

In  the  present  day,  a  person  who  has  been  indicted  must, 
as  a  matter  of  course,  stand  his  trial  before  a  petty  jury ;  he  is 
tried,  as  we  all  know,  by  a  jury  of  twelve,  and  the  jurors  are 
judges  of  fact — their  verdict  is  based  on  the  evidence  of 
witnesses  given  before  them  in  court.  But  in  Henry  VII's 
day  this  was  not  quite  the  case — an  indicted  person  was  not 
tried  by  jury  unless  he  consented  to  be  so  tried,  but  this 
consent  was  extorted  from  him  by  torture,  by  \htpeine  forte\ 
et  dtire.  If,  when  asked  'how  will  you  be  tried?'  he  refused  to 
say  '  By  God  and  my  country/  if  (as  the  phrase  went)  he  stood 
mute  of  malice,  he  was  pressed  under  heavy  weights  until  he 
either  died  or  said  the  necessary  words.  So  late  as  1658 
a  man  was  pressed  to  death,  so  late  as  1726  a  man  was  pressed 
into  pleading,  not  until  1772  was  the  peine  forte  et  dure 
abolished.  This  horrible  process  was  a  reminder  that  trial  by 
jury  was  not  native  to  English  law — there  had  been  a  time 
when  to  convict  a  man  of  crime  without  allowing  him  to 
appeal  to  God  by  means  of  battle  or  ordeal,  had  seemed  an 
impossible  injustice.  The  reason  why  men  were  found  hardy 


II  Appeals  and  Indictments  213 

enough  to  submit  to  the  terrible  torture  of  being  pressed  to 
death,  instead  of  escaping  with  a  mere  hanging,  was  this,  that 
if  they  were  convicted  they  forfeited  lands  and  chattels,  if 
they  died  unconvicted  there  was  no  forfeiture,  and  thus  their 
families  were  not  ruined. 

Another  point  that  we  may  note  is  that  before  Henry  VI  Ts 
day  the  law  had  come  to  demand  unanimity  of  the  jurors — 
unless  the  twelve  agreed  there  could  be  no  verdict  This  rule, 
as  we  all  know,  prevails  at  the  present  day  ;  but  it  only 
became  fixed  in  the  course  of  the  later  Middle  Ages;  it 
certainly  looked  at  one  time  as  if  the  law  would  be  content 
with  the  verdict  of  a  majority. 

We  have  already  seen  that  procedure  by  indictment  had 
once  been  a  novelty  in  English  law — a  novelty  introduced  by 
Henry  II :  it  had  taken  its  place  beside  rthe  older  procedure 
of  an  appeal  by  the  party  wronged1.  In  llenry  VI Ts  day  this 
older  alternative  still  existed,  and  was  still  in  use — the  appellee 
could  either  claim  trial  by  battle,  or  submit  to  trial  by  jury. 
Trial  by  battle  was,  however,  becoming  very  unusual.  Appeals 
were  not,  however,  abolished  until  1819:  their  abolition  was 
due  to  the  fact  that  in  1818,  in  the  celebrated  case  of  Ashford 
v.  Thornton,  an  appeal  was  brought,  and  the  appellee  claimed 
trial  by  battle — the  appellor  refused  to  fight. 

It  is  necessary,  in  order  to  explain  what  follows,  to  under- 
stand that  before  the  end  of  the  Middle  Ages  trial  by  jury  had 
taken  a  deep  root  in  the  English  system,  and  had  already 
become  the  theme  of  national  boastings.  Fortescue  contrasts 
it  favourably  with  the  procedure  of  the  French  courts,  where 
there  was  no  jury,  and  where  torture  was  freely  employed. 
It  is  a  very  curious  point  in  European  history,  that  an  institu- 
tion which  was  once  characteristically  Prankish,  became,  in 
course  of  time,  peculiarly  English,  and  underwent,  without 
losing  its  identity,  the  great  change  which  turned  the  body 
of  neighbour-witnesses  into  judges  of  the  evidence  given  by 
other  witnesses. 

But  to  return  to  the  courts — we  have  yet  to  speak  of  the 
judicial  functions  of  the  parliament,  of  the  king  in  parliament. 
In  this  sense  *  the  king  in  parliament1  comes  to  mean  the  House 

t1  Seep. '128. 


214  Constitutional  History  PERIOD 

of  Lords.  In  the  fourteenth  century,  as  we  have  already  seen, 
we  must  regard  the  presence  in  parliament  of  representatives 
of  the  commons  as  something  new.  These  newcomers 
gradually  improve  their  position,  they  will  not  be  mere 
granters  of  taxes,  they  claim  to  share  in  deliberation  and  in 
legislation.  But  now  we  have  to  note  that  they  never  obtain, 
hardly  attempt  to  obtain,  any  share  in  the  judicial  work  which 
from  of  old  had  been  done  by  the  king  in  the  assembly  of 
prelates  and  barons.  The  jurisdiction  of  the  king  in  parlia- 
ment remains  the  jurisdiction  of  the  king  with  his  prelates 
and  barons  ;  in  other  words,  since  the  king  does  not  himself 
take  part  in  judicial  proceedings  (in  the  fourteenth  century, 
to  say  the  least,  it  is  most  unusual  for  him  to  do  so,  in  the 
fifteenth  century,  as  we  learn  from  Fortescue,  it  is  thought 
distinctly  improper  fhat  he  should  do  so),  the  jurisdiction  of 
the  king  in  parliament  has  come  to  mean  the  jurisdiction  of 
the  House  of  Lords.  This  we  find  is  of  three  kinds. 

(i)  The  House  of  Lords  acts  as  a  court  for  the  trial  of 
peers  accused  of  treason  or  of  felony.  Of  this  we  have  said 
something  already1.  If  the  parliament  be  not  sitting,  the  peer 
is  tried  by  the  Lord  High  Steward,  assisted  by  a  body  of  peers 
chosen  by  him.  Very  probably  it  is  because  this  work  of 
trying  peers  was  one  very  principal  field  for  the  jurisdiction  of 
parliament,  that  the  commons  took  no  part  in  the  judicial 
work.  At  any  rate,  in  1399  the  commons,  fearing  perhaps  that 
they  might  be  called  in  question  touching  some  of  the  very 
irregular  proceedings  of  Richard's  reign,  protested  solemnly 
that  they  had  no  part  in  judicial  work — the  judgment  of 
parliament  was  the  judgment  of  the  king  and  the  lords ;  this 
protest  established  a  permanent  principle. 

(ii)  We  have  what  is  called  the  jurisdiction  in  error,  the 
jurisdiction  of  the  king  and  parliament  as  a  court  of  error, 
a  court  which  could  correct  the  errors  in  law  of  all  lower 
courts.  This  we  may  trace  back  far — the  last  resource  for 
royal  justice  was  the  king  surrounded  by  the  magnates  of  the 
realm.  We  find  it  settled  in  the  fifteenth  century  as  a  juris- 
diction to  correct  errors  in  matters  of  law,  as  contrasted  with 
matters  of  fact.  The  notion  of  trying  the  same  facts  twice 
over,  except  by  attainting  the  jury,  is  quite  foreign  to  our 

1  See  pp.  169—171. 


II       Jurisdiction  of  the  House  of  Lords    215 

medieval  law — but  if  the  king's  courts  of  common  law  make 
errors  in  law,  it  remains  for  the  House  of  Lords  to  correct 
those  errors.  During  the  fourteenth  century  this  jurisdiction 
seems  to  have  been  freely  used,  but  for  some  reason  or 
another,  not  very  easy  to  understand,  it  went  out  of  use  in 
the  fifteenth  century.  Between  Henry  V  and  James  I  there 
are  hardly  any  known  cases  of  error  being  brought  before  the 
lords:  however,  this  procedure,  though  for  a  time  disused,  had 
a  great  future  before  it,  as  we  shall  see  hereafter. 

(iii)  The  parliament,  that  is  to  say,  the  lords,  had  gradually 
abandoned  all  attempt  to  act  as  a  court  of  first  instance  in 
criminal  or  civil  cases,  save  when  a  peer  was  to  be  tried  for 
felony  or  treason — but  to  this  there  was  one  great  exception. 
They  had  entertained  accusations  both  against  peers  and 
against  commoners  when  preferred  by  t^he  commons.  Such 
accusations  preferred  by  the  commons  to' the  lords  came  to  be 
known  as  impeachments.  The  first  case  of  what  can  definitely 
be  called  an  impeachment,  occurs  in  the  Good  Parliament  of 
1376;  Lord  Latimer,  the  king's  chamberlain,  and  one  Lyons, 
were  impeached.  In  1386  we  have  the  impeachment  of  the 
Duke  of  Suffolk ;  some  other  cases  follow  rapidly  during  the 
troubled  reign  of  Richard  II.  A  few  more  cases  followed,  just 
sufficient  to  establish  the  outlines  of  a  procedure — the  last  is 
in  1459.  After  this  there  is  a  long  break  from  1459  until  this 
ancient  weapon  was  furbished  for  a  new  use  in  1621  ;  during 
the  interval  parliaments  were  hardly  in  a  position  to  impeach 
the  king's  ministers,  for  it  was  as  <a  check  upon  the  king's 
ministers  that  the  impeachment  was  chiefly  valuable,  and  came 
to  be  afterwards  valued  ;  smaller  offenders  could  be  left  to 
their  fate  in  the  ordinary  courts. 

One  other  parliamentary  process  remains  to  be  noticed — 
but  it  must  be  carefully  distinguished  from  an  impeachment — 
I  mean  an  act  of  attainder  or  of  pains  and  penalties.  A 
statute,  we  say,  can  do  anything — such  acts  as  I  have  just 
mentioned  are  statutes,  acts  of  parliament  for  putting  a  man 
to  death,  or  otherwise  punishing  him  without  any  trial  at  all. 
It  is  not  a  judicial  act,  it  proceeds  with  the  legislative  authority 
of  king,  lords  and  commons.  At  the  Coventry  parliament  of 
1459  the  Yorkist  lords  were  attainted.  Two  years  afterwards 


216  Constitutional  History  PERIOD 

the  turn  for  the  Lancastrians  comes,  and  Henry  VI,  his  wife, 
and  a  large  number  of  his  supporters  are  attainted.  In  1477 
the  Duke  of  Clarence  was  attainted — these  were  miserable 
precedents,  acts  of  anarchy  and  of  revenge.  It  was  under 
Henrv  VI I L  wha  could  obtain  anythir^  from  oarTTamentJJiat 
the^act  of  attainder  camg  into  common  use  :  of  this  hereafter. 
But  distinguish  snrh  apRri,  a  statute  passec|  by  kinfrTords  and 
commons,  without  anv  tri^l.  without  any  judicial  formalities. 
from  the  trial  before  the  House  of  Lords  of  a  person  who  has 
been  impeached,  iTp.f  topnally  accused  by  the  commons. 

We  have  yet  to  speak  of  the  jurisdiction  of  the  king's 
council,  a  matter  with  which  it  is  difficult  to  deal,  because  it 
was  constantly  the  subject  of  bitter  controversy.  We  have 
seen  that  in  Edward  Fs  time  the  council  exercised  a  jurisdic- 
tion, which  it  is  somewhat  difficult  to  mark  off  from  that  of  the 
parliament;  the  two/ work  together  so  harmoniously  that  the 
council  at  times  seettis  a  standing  committee  of  the  parliament, 
or  the  parliament  a  particularly  full  and  solemn  meeting  of  the 
council.  But  this  harmony  is  soon  dispelled  :  throughout 
the  fourteenth  century  there  is  constant  conflict  between  the 
council  and  the  parliament,  and  the  latter  seeks  time  after 
time  to  set  limits  to  the  judicial  functions  of  the  former. 
We  may  distinguish  three  different  kinds  of  jurisdiction, 
(l)  the  power  to  correct  the  errors  of  the  ordinary  courts  of 
law,  (2)  an  original  jurisdiction,  jurisdiction  as  a  court  of  first 
instance  in  criminal  cases,  (3)  an  original  jurisdiction  in  civil 
cases, 

(l)  The  first  of  these  has  the  shortest  history.  The 
function  of  correcting  the  errors  in  law  of  the  ordinary  courts 
of  law  became  definitely  the  function  of  the  parliament  (i.e.,  as 
we  have  seen,  of  the  House  of  Lords),  and  the  council  had  to 
forego  it.  In  1365  we  have  a  case  in  which  the  judges  of  the 
Court  of  Common  Pleas  refused  to  pay  any  heed  to  the 
reversal  by  the  council  of  a  judgment  of  the  justices  of 
assize — the  council,  they  said,  is  not  a  place  in  which  judg- 
ments can  be  reversed1.  Again  in  1402  we  have  a  statute 
(4  Hen.  IV,  c.  23)  which  shows  that  the  council  had  been 
calling  in  question  the  judgments  of  the  lower  courts,  had 
1  Yearbooks i  vol.  ill,  39  Edw.  Ill,  f.  14. 


II     *         Jurisdiction  of  the  Council  217 

not  been  regarding  them  as  final — it  is  therefore  ordained 
that  after  judgment  the  parties  shall  be  in  peace,  until  the 
judgment  be  reversed  by  attaint  or  by  error.  However, 
without  interfering  with  judgments  already  delivered,  the 
council  had  a  wide  field  of  action,  and  it  is  over  its  jurisdiction 
as  a  court  of  first  instance  that  controversy  rages. 

(2)  Already  in  1331  parliament  attempts  to  put  a  stop  to 
legal  proceedings,  other  than  those  in  the  ordinary  courts  of 
law.  It  is  enacted  (5  Edw.  Ill,  c.  9)  that  no  man  is  to  be 
attached  by  any  accusation,  nor  forejudged  of  life  or  limb,  nor 
his  lands,  tenements,  goods  or  chattels  seized  into  the  king's 
hands,  against  the  form  of  the  Great  Charter  and  the  law  of 
the  land.  In  1351  we  have  a  second  statute  (25  Edw.  Ill, 
stat.  5,  c.  4):  'None  shall  be  taken  by  petition  or  suggestion 
made  to  our  lord  the  king,  or  to  his  council,  unless  it  be  by 
indictment  or  presentment  of  good  and^  lawful  people  of  the 
same  neighbourhood,  where  such  deeds  be  done  in  due  manner 
or  by  process  made  by  writ  original  at  the  common  law;  and 
none  shall  be  put  out  of  his  franchise  or  his  freehold,  unless 
he  be  duly  brought  in  to  answer,  and  forejudged  of  the  same 
by  the  course  of  the  law.'  Then  again  in  1354  (28  Edw.  Ill, 
c.  3),  'no  man  of  what  estate  or  condition  that  he  be,  shall 
be  put  out  of  land  or  tenement,  nor  taken,  nor  imprisoned, 
nor  disinherited,  nor  put  to  death  without  being  brought  in 
answer  by  due  process  of  law.'  In  1363  and  1364  we  have 
other  statutes  (37  Edw.  Ill,  c.  18;  38  Edw.  Ill,  c.  9)  which 
denounce  punishment  against  perspns  who  make  false  sug- 
gestions to  the  king,  statutes  which  seem  to  be  aimed  at  the 
jurisdiction  of  the  council.  Then  again  in  1368  (42  Edw.  Ill, 
c.  3)  we  have  the  old  story — it  is  established  that '  no  man  be 
put  to  answer  without  presentment  before  justices,  or  matter 
of  record,  or  by  due  process  and  writ  original  according  to 
the  old  law  of  the  land/  But  all  these  statutes  which  seem 
devised  to  curb  the  council,  and  to  sanction  the  procedure  of 
the  common  law  courts,  indictments  and  original  writs,  as  the 
only  legal  procedure,  have  apparently  but  little  immediate 
effect.  Under  Henry  IV  and  Henry  V  the  commons  are  still 
petitioning  against  the  jurisdiction  of  the  council ;  but  the 
king  does  not  assent  to  their  petitions.  They  then  become 


218  Constitutional  History  PERIOD 

silent ;  and  it  would  seem  that  under  the  constitutional  rule 
of  the  Lancastrian  house,  the  jurisdiction  of  the  council  was 
not  oppressively  exercised.  The  series  of  statutes  at  which 
we  have  glanced  remained  unrepealed,  if  disregarded,  during 
the  whole  of  the  Tudor  period.  They  became  of  vast 
importance  under  the  Stuarts,  for  they  were  the  base  for  the 
contention  that  the  Court  of  Star  Chamber  was  no  legal 
tribunal. 

Still  the  convenience  of  a  tribunal  which  was  not  bound 
down  to  a  formal  procedure  (and  we  must  remember  that 
the  procedure  of  the  common  law  courts  was  extremely  formal) 
made  itself  apparent  from  time  to  time,  and  we  find  parlia- 
ment admitting  that  the  council  has  a  certain  sphere  of 
jurisdiction.  This  we  may  see  in  several  different  quarters. 
In  1351  parliament  began  its  course  of  anti-Roman  legislation; 
we  have  those  statutes  of  Provisors  and  of  Praemunire,  which 
play  a  large  part 'in  the  history  of  our  church,  statutes 
directed  to  excluding  the  interference  of  the  Pope  with 
English  benefices.  In  1363  (38  Edw.  Ill,  stat.  2,  c.  2)  we 
find  parliament  ordaining  that  persons  who  offend  against 
these  statutes  are  to  answer  for  it  before  the  council,  and  to 
be  punished  according  to  the  discretion  of  the  council.  Lords 
and  commons  are  in  great  earnest  about  this  matter,  and  are 
therefore  quite  content  that  justice  shall  be  done  rapidly  and 
without  any  dilatory  formalities.  In  1388  parliament  is  so 
very  desirous  that  justices  shall  hold  their  quarter  sessions  for 
the  enforcement  of  the  statutes  of  labourers,  that  it  (12  Ric.  II, 
c.  10)  enacts  that  if  justices  do  not  hold  sessions  they  are  to 
be  punished  according  to  the  discretion  of  the  king's  council. 
In  1453  we  find  a  temporary  but  very  severe  act  (31  Hen.  VI, 
c.  2),  passed  after  Jack  Cade's  insurrection,  which  fully  admits 
the  lawfulness  of  writs  directing  persons  guilty  of  riots, 
oppressions  and  extortions,  to  appear  before  the  council. 
Contempt  of  such  writs  is  to  be  severely  punished  by  for- 
feiture ;  this  is  to  endure  for  seven  years.  A  more  general 
admission  we  find  in  certain  articles  for  the  council  of  the 
infant  king  agreed  to  by  parliament  in  1430 — all  petitions 
to  the  council  dealing  with  matters  determinable  by  the 
common  law  are  to  be  sent  to  the  common  law  courts,  unless 


II         Legality  of  Council's  Jurisdiction     219 

the  discretion  of  the  council  feel  too  great  might  on  the  one 
side,  too  great  unmight  on  the  other,  or  else  other  reasonable 
cause  that  shall  move  them1. 

If  we  place  ourselves  at  the  accession  of  Henry  VII,  and 
ask  ourselves  whether  the  criminal  jurisdiction  of  the  council 
was  legal,  we  shall  find  it  hard  to  come  by  a  very  definite 
answer.  On  the  one  hand  there  were  statutes  unrepealed 
which  might  be  read  as  condemning  it  entirely.  Our  law 
knows  not  now,  and  knew  not  then,  any  such  principle  as  that 
statutes  can  grow  obsolete — a  statute  once  enacted  remains  in 
force  until  it  is  repealed.  Still  it  is  a  hard  thing  to  pronounce 
illegal  that  which  parliament  and  the  great  mass  of  the  nation, 
including  probably  the  judges,  regard  as  legal ;  and  it  seems 
probable  that  at  Henry's  accession  this  was  true  of  the  council's 
jurisdiction.  It  was  generally  admitted  that  it  could  punish 
those  offences  which  the  courts  of  common  law  were  incom- 
petent to  punish,  offences  falling  short  of  felony  (the  council 
seems  always  to  have  shrunk  from  pronouncing  the  penalty 
of  death)  in  particular,  offences  which  consisted  in  an 
interference  with  the  ordinary  course  of  justice,  riots,  bribery 
of  jurors,  and  so  forth.  It  was,  I  think,  felt  that  there  were 
men  who  were  too  big  for  any  court  but  the  council :  they 
would  bribe  jurors  and  even  judges.  The  statutes  to  which 
we  have  referred  were,  we  may  say,  protests  in  favour  of  trial 
by  jury — but  there  are  other  statutes  which  show  very  plainly 
that  trial  by  jury  often  meant  the  grossest  injustice :  there 
were  men  whom  no  jury  would  opnvict  This,  I  think,  was 
admitted,  and  the  remedy  was  seen  in  a  reserve  of  extra- 
ordinary justice  to  be  found  as  of  old  in  the  king  and  his 
immediate  advisers,  justice  which  could  strike  quickly  and  not 
have  to  strike  again,  justice  which  could  strike  even  the  most 
powerful  offenders. 

It  is  with  this  in  our  minds  that  we  approach  the  statute 
of  1487  (3  Hen.  VII,  c.  i),  which  has  been  regarded  as  creating 
the  CourtTot  Star  CharnberT  It  recites  that  certain  offences 
are  very  common,  riots,  perjury,  bribery  of  jurors,  misconduct 
of  sheriffs  and  some  others  of  the  same  class  ;  then  it  empowers 

1  Nicolas,  Proceedings  and  Oniinances  of  the  Privy  Council  JV,  61,  §  in. 


22O*  Constitutional  History  PERIOD 

thr  chancellor,  treasurer,  and  keeper  of  the  privy  seal,  calling 
to  them  a  bishop  and  a  temporal  lord  of  the  council,  and 
the  two  chief  justices  or  other  two  justices  in  their  absence, 
to  call  before  them  persons  accused  of  these  offences  to 
examine  them,  and  to  punish  them  according  to  their  demerits 
as  they  ought  to  be  punished,  if  they  were  thereof  convict  in 
due  order  of  law.  The  statute  says  nothing  of  the  Star 
Chamber;  but  for  a  long  time  past  a  room  in  the  palace  of 
Westminster  bearing  that  name  had  been  commonly  used  by  the 
council  for  its  judicial  sessions.  It  names,  we  observe,  certain 
particular  offences — and  it  names  certain  persons  who  are  to 
hear  the  charges  and  punish  the  offenders.  Now,  in  later 
times  (of  this  we  shall  have  to  speak  again)  we  find  a  tribunal 
which  is  known  as  the  Court  of  Star  Chamber;  it  is  not 
exactly  constituted  on  the  lines  marked  out  by  the  statute  of 
Henry  VII,  and  it  does  not  confine  itself  to  the  offences 
mentioned  in  that  statute.  It  consists  apparently  of  the  whole 

councii^^r  of  cP  committee  of  the  council,  and   must  have 

^*&» 
generally  coinprised  all  or  most  of  the  officers  mentioned  in 

the  statute :  chancellor,  treasurer,  keeper  of  the  privy  seal,  two 
judges,  one  temporal  lord  of  the  council  and  one  bishop;  and 
though  it  does  punish  the  offences  mentioned  in  the  statute, 
still  it  punishes  many  other  offences  as  well — in  short,  it 
exercises  a  very  comprehensive  penal  jurisdiction,  practically 
an  unlimited  jurisdiction,  or  limited  only  by  this,  that  it  does 
not  attempt  to  indict  the  penalty  of  death.  Under  the  Stuarts 
we  have  bitter  controversy  as  to  the  legality  of  this  court: 
if  on  the  one  hand  it  is  regarded  as  created  by  the  Act  of 
1487,  then  it  habitually  exceeds  the  powers  which  were 
entrusted  to  it  by  parliament :  if  on  the  other  hand  it  be 
regarded  as  exercising  a  jurisdiction  inherent  in  the  king's 
council,  then  it  may  well  be  argued  that  it  acts  in  direct 
defiance  of  those  unrepealed  statutes  of  Edward  I  IPs  reign,  of 
which  we  have  already  spoken1. 

To  this  point  we  must  come  back  hereafter ;  let  us  now 
notice  that  Henry  VII  and  his  successors  have  ready  to  their 
hands  a  most  efficient  engine  of  government  The  same  body 

1  Reference  may  now  be  made  to  Leadam,  Select  Cases  in  the  Star  Chamber 
(Selden  Society)  1902. 


II  The  Star  Chamber  221 

which  issues  ordinances,  which  controls  the  execution  of  the 
law  and  the  administration  of  the  state,  acts  also  as  a  court 
of  justice  with  a  comprehensive  penal  jurisdiction — one  day 
it  can  make  an  ordinance,  and  the  next  punish  men  for  not 
obeying  it.  Its  jurisdiction  it  exercises  without  any  lengthy 
formalities — there  is  no  trial  by  jury  before  it — the  accused 
person  is  examined  on  his  oath,  a  procedure  quite  strange  to 
the  courts  of  common  law,  in  which  (as  the  phrase  goes)  no- 
one  can  be  compelled  to  accuse  himself.  And  it  uses  torture. 
Fortescue,  the  Lancastrian  chief  justice,  to  whose  writings  we 
have  more  than  once  referred,  speaks  of  torture  as  foreign  to 
English  law — this  is  one  of  the  respects  in  which  he  extols 
the  English  law  at  the  expense  of  continental  law1  But  in 
Edward  I V's  reign  torture  begins  to  make  its  appearance ;  we 
hear  of  it  in  1468.  It  never  becomes  part  of  the  procedure  of 
the  ordinary  courts,  but  a  free  use  is  dnade  of  it  by  council, 
and  the  rack  becomes  one  of  our  political  institutions.  The 
judicial  iniquities  of  Edward  IV's  reign  are  evil  precedents 
for  his  successors. 

(3)  We  have  been  speaking  in  the  main  of  the  penal  or 
criminal  jurisdiction  of  the  council.  But  it  had  exercised 
a  civil  jurisdiction  as  well,  and  this  has  a  history  of  its  own. 
If  in  one  direction  we  see  the  power  of  the  council  represented 
by  the  Court  of  Star  Chamber,  in  another  we  see  it  represented 
by  the  Court  of  Chancery. 

We  must  go  back  a  little  way.  Ever  since  the  Norman 
Conquest  every  king  has  his  chancellor,  who  has  the  custody 
of  his  great  seal,  and  is  at  the  hekd  of  the  whole  secretarial 
body  of  king's  clerks.  When  at  the  end  of  Henry  Ill's  reign 
there  ceases  any  longer  to  be  a  chief  justiciar,  the  chancellor 
becomes  the  king's  first  minister.  Robert  Burnell,the  chancellor, 
is  Edward  Ts  chief  adviser.  The  chancellor  is  almost  always 
an  ecclesiastic — there  are  a  few  instances  of  lay  chancellors 
in  the  fourteenth  century — generally  he  is  a  bishop.  In  many 
different  ways  he  has  for  a  long  time  past  been  concerned 
in  the  administration  of  law.  In  the  first  place  it  has  been 
his  duty,  or  that  of  his  clerks,  to  draw  up  those  royal  writs 
(original  writs)  whereby  actions  are  begun  in  the  king's  courts 

1  DC  Laudibus  Legiim  Anghae  c.  xxi. 


222  Constitutional  History  PERIOD 

of  common  law.  He  has  also  had  some  judicial  powers  of 
his  own — in  particular,  if  it  be  asserted  that  the  king  has 
made  a  grant  of  what  does  not  belong  to  him,  it  is  for  the 
chancellor  to  hear  the  matter,  and  if  need  be  to  advise  the 
king  to  revoke  his  grant.  Then  again  he  has  always  been 
a  member  of  the  king's  council,  and  what  is  more,  the  specially 
learned  member — that  he  should  be  acquainted  with  canon 
law  and  Roman  law,  as  well  as  with  the  common  law  of 
England,  was  very  desirable.  Naturally  then  if  questions  of 
law  came  before  the  council,  the  chancellor's  opinion  would 
be  taken. 

As  the  fourteenth  century  goes  on  we  find  that  a  good 
deal  of  civil  litigation  comes  before  the  council  in  one  way 
and  another.  Persons  who  think  themselves  injured  and  who 
think  that,  for  some  reason  or  another,  they  cannot  get  their 
rights  by  the  ordinary)  means,  are  in  the  habit  of  petitioning 
the  king,  asking  for  some  extraordinary  relief.  We  must 
remember  that  besides  the  ordinary  writs  whereby  actions 
at  law  were  begun,  writs  which  were  obtained  from  the 
Chancery  as  a  matter  of  course  upon  payment  of  the  fixed 
fee,  there  was  a  certain  power  reserved  to  the  Chancery  of 
making  new  writs  to  suit  new  cases,  of  introducing  modifi- 
cations in  the  established  forms.  Sometimes  the  relief  which 
a  petitioner  desired  was  of  this  kind ;  at  other  times  he 
wanted  more  than  this — he  wanted  that  the  council  should 
send  for  his  adversary  and  examine  him  upon  oath.  Various 
excuses  for  the  king's  interference  are  put  forward — the  sup- 
pliant is  poor,  old,  sick ;  Ms  adversary  is  rich  and  powerful, 
will  bribe  or  intimidate  the  jurors,  or  has  by  accident  or  trick 
obtained  some  advantage  of  which  he  cannot  be  deprived 
by  the  ordinary  courts.  The  tone  of  these  petitions  is  very 
humble,  they  ask  relief  for  the  love  of  God  and  that  peerless 
Princess  his  Mother,  or  for  His  sake  who  died  on  the  Rood 
Tree  on  Good  Friday.  A  common  formula  is — for  the  love 
of  God  and  in  the  way  of  charity.  Thus  the  petitioner 
admits  that  strictly  speaking  he  is  not  entitled  to  what  he 
asks — he  asks  a  boon,  a  royal  favour1. 

1  Select  Cases  in  Chantry  (A.D.  1364—1471),  ed.  for  the  Selden  Society  by 
W.  P.  Baildon,  1896. 


ii    The  Chancellor's  Equitable  Jurisdiction  223 

Now  the  series  of  statutes  and  petitions  of  parliament,  to 
which  we  have  already  referred,  seems  to  have  been  directed 
quite  as  much  against  the  interference  of  the  council  in  civil 
litigation  as  against  its  assumption  of  criminal  jurisdiction — 
the  view  of  parliament  is  that  the  courts  of  common  law  are 
sufficient.  Gradually,  in  the  fifteenth  century,  the  council 
seems  to  have  abandoned  the  attempt  to  interfere  with  cases 
in  which  there  was  a  question  which  the  courts  of  common 
law  could  decide,  but  it  became  apparent  that  there  were 
cases  in  which  no  relief  at  all  could  be  got  from  these  courts, 
and  yet  cases  in  which  according  to  the  ideas  of  the  time 
relief  was  due.  I  cannot  say  very  much  about  this  matter 
without  plunging  into  the  history  of  private  law — still  some- 
thing ought  to  be  said.  It  had  for  many  reasons  and  in 
many  cases  become  a  common  practice  for  a  landowner  (A) 
to  convey  his  estate  to  some  friend  (/B),  upon  the  under- 
standing that  though  that  friend  (B)  v^vas  to  be  the  legal 
owner  of  it,  nevertheless  (A)  was  to  have  all  the  advantages 
of  ownership: — B  was  then  said  to  hold  the  land  'to  the 
use  of  A,  or  upon  trust  or  in  confidence  for  A.1  This  dodge, 
for  such  we  may  call  it,  was  employed  for  a  variety  of 
purposes.  Thus,  for  example,  A  has  some  reason  to  believe 
that  he  will  be  convicted  of  treason — during  the  Wars  of 
the  Roses  many  persons  must  have  regarded  this  as  highly 
probable — he  desires  to  prevent  his  land  being  forfeited,  he 
desires  to  provide  for  his  family : — he  conveys  his  land  to  B 
upon  the  understanding  that  B  is  to  hold  it  upon  trust  for,  or 
to  the  use  of,  him,  A.  Then  A  codimits  treason, — there  is  no 
land  to  be  forfeited — the  land  is  B's  and  B  has  committed  no 
crime — still  B  is  in  honour  bound  to  let  A's  heir  have  the  use 
and  enjoyment  of  the  land.  The  same  device  was  used  for 
the  purpose  of  evading  the  feudal  burdens;  the  same  device 
was  used  for  defrauding  creditors — the  creditor  comes  to  take 
A's  land  and  finds  that  it  is  not  A's  but  B's.  The  same  device 
was  largely  used  by  the  religious  houses  in  order  to  evade  the 
statutes  of  mortmain;  they  were  prohibited  from  acquiring 
new  lands — but  there  was  nothing  to  prevent  a  man  conveying 
land  to  X  to  be  held  by  him  upon  trust  for  the  monastery. 
The  credit  or  blame  of  having  invented  these  uses,  or  trusts, 


224  Constitutional  History  PERIOD 

is  commonly  laid  at  the  door  of  the  religious  houses.  At  any 
rate,  in  the  early  part  of  the  fifteenth  century  this  state  of 
things  became  very  common :  B  was  the  legal  owner  of  the 
land,  but  he  was  bound  in  honour  and  conscience  to  let  A 
have  the  profit  of  it  and  to  do  with  it  what  A  might  direct. 
His  obligation  was  as  yet  one  unsanctioned  by  law — the 
courts  of  common  law  had  refused  to  give  A  any  remedy 
against  B ;  they  would  not  look  behind  B ;  B  was  the  owner 
of  the  land  and  might  do  what  he  pleased  with  it  regardless 
of  A's  wishes. 

By  this  time  (we  are  speaking  of  the  early  part  of  the 
fifteenth  century)  it  had  become  so  much  the  practice  for 
the  king's  council  to  refer  all  petitions  relating  to  civil  cases  to 
the  chancellor — the  king's  chief  legal  adviser — that  petitioners 
who  wanted  civil  relief  no  longer  addressed  their  complaints 
to  the  king,  but  addressed  them  to  the  chancellor,  and  the 
chancellor  seems  to  nave  commonly  dealt  with  them  without 
bringing  the  matter  before  the  king  and  council.  Now  this 
device  of  'uses,  trusts  or  confidences'  of  which  we  have  just 
spoken  provided  the  chancellor  with  a  wide  and  open  field 
of  work.  In  Henry  V's  reign  we  find  that  the  chancellor 
will  enforce  'a  use'  (as  it  is  called) — if  B  holds  land  to  the 
use  of  A,  the  chancellor  on  the  complaint  of  A  will  compel 
B  to  fulfil  the  understanding,  will  compel  him  to  deal  with 
the  land  as  A  directs — will  put  him  in  prison  for  contempt 
of  court  if  he  refuses  to  obey  the  decree : — though  B  is  legally 
the  owner  of  the  land,  it  is  considered  unconscionable,  in- 
equitable, that  he  should,  disregard  the  trust  that  has  been 
put  in  him— the  chancellor  steps  in,  in  the  name  of  equity 
and  good  conscience.  No  doubt  this  was  convenient ;  if  the 
chancellor  had  not  given  help,  in  course  of  time  the  common 
law  courts  would  probably  have  had  to  modify  their  doctrines 
and  to  find  some  means  of  enforcing  these  '  uses.'  But  the 
common  law  was  a  cumbrous  machine,  and  could  not  easily 
adapt  itself  to  meet  the  new  wants  of  new  times.  On  the 
other  hand  the  chancellor  had  a  free  hand,  and  it  is  by  no 
means  impossible  that  for  a  long  time  past  the  ecclesiastical 
courts  (and  the  chancellor  was  an  ecclesiastic)  had  been 
struggling  to  enforce  these  equitable  obligations.  At  any 


II  Growth  of  Equity  225 

rate  when  once  it  had  become  clear  that  the  chancellor  was 
willing  and  able  to  enforce  them,  a  great  mass  of  business 
was  brought  before  him.  It  was  found  highly  convenient  to 
have  land  'in  use.'  Parliament  and  the  common  lawyers  do 
not  like  this  equitable  jurisdiction  of  the  chancellor — some- 
times they  plan  to  take  it  away  and  to  provide  some  substitute 
— but  it  justifies  its  existence  by  its  convenience,  and  in  the 
reign  of  Henry  VII  we  must  reckon  the  Court  of  Chancery 
as  one  of  the  established  courts  of  justice,  and  it  has  an 
equitable  jurisdiction;  beside  the  common  law  there  is  growing 
up  another  mass  of  rules  which  is  contrasted  with  the  common 
law  and  which  is  known  as  equity. 

The  establishment  of  such  a  system  of  rules  is  an  affair 
of  time.  Of  the  equity  of  the  fifteenth  century,  even  of  the 
sixteenth,  we  know  but  little,  for  the  proceedings  in  the 
chancery  were  not  reported  as  those  of  the  common  law 
courts  had  been  ever  since  the  days  of  Edward  L  But  this 
fact  alone  is  enough  to  suggest  that  the  chancellors  did  not 
conceive  themselves  to  be  very  strictly  bound  by  rule,  that 
each  chancellor  assumed  a  considerable  liberty  of  deciding 
causes  according  to  his  own  notions  of  right  and  wrong. 
Probably,  however,  the  analogies  of  the  common  law  and  the 
ecclesiastical  jurisprudence  served  as  a  guide.  In  course  of 
time  (this  belongs  rather  to  a  subsequent  stage  of  our  history 
but  should  be  mentioned  here)  the  rules  of  equity  became  just 
as  strict  as  the  rules  of  common  law — the  chancellors  held 
themselves  bound  to  respect  the  principles  to  be  found  in  the 
decisions  of  their  predecessors — a  decision  was  an  authority 
for  future  decisions. 

Thus  it  came  about  that  until  very  lately,  until  1875,  we 
had  alongside  of  the  courts  of  common  law,  a  court  of  equity, 
the  Court  of  Chancery.  I  shall  attempt  to.  describe  hereafter 
the  sort  of  thing  that  equity  was  in  the  present  century  before 
the  great  change  which  abolished  all  our  old  courts  and  the 
sort  of  thing  that  it  is  at  this  moment.  We  are  now  dealing 
with  past  time  and  must  think  of  the  chancellors  as  having 
acquired  a  field  of  work  which  constantly  grows.  They  are  sup- 
plementing the  meagre  common  law,  they  are  enforcing  duties 
which  the  common  law  does  not  enforce,  e.g.  they  are  enforcing 
M.  15 


226  Constitutional  History  PERIOD 

those  understandings  known  as  uses  or  trusts,  and  they  are 
giving  remedies  which  the  common  law  does  not  give,  thus  if 
^t  man  will  not  fulfil  his  contract,  all  that  a  court  of  common 
law  can  do  is  to  force  him  to  pay  damages  for  having  broken 
it — but  in  some  cases  the  Chancery  will  give  the  more  ap- 
propriate remedy  of  compelling  him  (on  pain  of  going  to 
prison  as  a  contemner  of  the  court)  to  specifically  perform 
his  contract,  to  do  exactly  what  he  has  promised.  Then  again 
the  procedure  of  the  Court  of  Chancery  differed  in  many 
important  respects  from  that  of  the  courts  of  law ;  in  particular, 
it  examined  the  defendant  on  oath,  it  compelled  him  to  disclose 
what  he  knew  about  the  facts  alleged  against  him.  Popular 
the  Court  of  Chancery  never  was,  but  the  nation  could  not 
do  without  it — and  so  gradually  our  law  acquired  what  for 
centuries  was  to  be  one  of  its  leading  peculiarities ;  it  consisted 
of  a  body  of  rules  Jfcnown  as  common  law  supplemented  by  a 
body  of  rules  known  as  equity,  the  one  administered  by  the 
old  courts,  the  other  by  the  new  Court  of  Chancery. 

D.     General  Characteristics  of  English  Law. 

As  time  does  not  permit  me  to  carry  out  the  whole  of  my 
plan,  I  will  this  morning  take  notice  of  a  few  miscellaneous 
points  which  are  of  some  importance1.  And,  in  the  first  place, 
I  turn  to  criminal  law  in  general  and  the  law  of  treason  in 
particular. 

At  the  head  of  all  crimes  stands  high  treason.  In  1352 
this  crime  was  defined7 by  a  very  famous  statute.  It  recites 
that  there  had  been  doubts  as  to  what  was  treason  and 
proceeds  to  declare  that  treason  is  :  if  any  compass  or  imagine 
the  death  of  the  king,  his  wife  or  their  eldest  son  and  heir,  or 
violate  the  king's  wife  or  his  eldest  unmarried  daughter,  or 
levy  war  against  the  king  in  his  realm  or  be  adherent  to  his 
enemies  in  his  realm,  giving  to  them  aid  and  comfort  in  his 
realm  or  elsewhere,  and  if  this  shall  be  provably  attainted  by 
men  of  his  [the  accused  person's]  own  condition.  And  if  a 
man  counterfeit  the  king's  great  or  privy  seal  or  his  money, 
or  bring  false  money  into  the  realm,  or  slay  the  chancellor 

1  For  the  omitted  topics  see  Analysis,  p.  xvii. 


II  Treason  227 

treasurer,  or  justices  of  the  one  bench  or  the  other,  justices 
*  being  in  their  place  doing  their  offices.'  Omitting  the  rarer 
cases  we  may  say  that  there  are  three  main  modes  of  treason: 

(1)  imagining  the  king's  death,  i.e.  forming  an  intention  to 
kill  the  king  and  displaying  this  intention  by  some  overt  act, 

(2)  levying  war  against  the  king,  (3)  adhering  to  the  king's 
enemies.     From    1352   to   the   present   day   this  statute  has 
formed  the  basis  of  the  law  of  treason.     However,  in  every 
time  of  political  disorder  new  treasons  have  been  created, 
which  generally  have  been  abolished  when  the  danger  has 
passed  away.  Thus  in  1397,  at  the  troubled  close  of  Richard  II's 
reign,  it  was  made  treason  not  merely  to  compass  the  death 
of  the  king,  but  to  compass  to  depose  him.     Two  years  after- 
wards, when  the  House  of  Lancaster  had  succeeded  to  the 
throne,  this  statute  was  repealed.     So  in   1414  it  was  made 
treason  to  kill  or  rob  persons  having  the  king's  safe-conduct ; 
but  this  was  repealed  in    1442.     No  other  new  treason  was 
created  by  statute  during  the  fifteenth  century;  but  the  judges 
were  discovering  that  the  words  of  the  Act  of  Edward  III 
could  be  stretched.     Then  with  the  Reformation  we  have  new 
statutory  treasons:    nine   Acts  of   Henry  VIII   create  new 
treasons — four  directed  against  the  supporters  of  the  pope, 
five  devoted  towards  maintaining  the  royal  succession  as  it 
stood  after  the  king's  various  marriages : — thus  it  was  made 
treason  to  publish  and  pronounce  by  express  writing  or  words 
that  the  king  is  an  heretic,  schismatic,  tyrant,  infidel  or  usurper; 
obstinately  to  refuse  the  oath  abjuring  the  papal  supremacy; 
to  imagine  to  deprive  the  king  of  his  title  as  supreme  head 
of  the  church ;  to  assert  the  validity  of  the  king's  marriage 
with  Anne  of  Cleves.     At  the  beginning  of  the  next  reign 
(1547)  all  these  new  treasons  were  swept  away — but  some  new 
ones  were  created — in  1549  it  was   made  treason  for  twelve 
or  more  persons  to  make  a  riot  with  intent  to  kill,  take  or 
kill  any  of  the  Privy  Council.     Then  these  were  abolished  in 
Mary's  reign  :  but  some  new  treasons  were  created,  thus  it  was 
treason  if  any  by  express  words  shall  pray  that  God  would 
shorten  the  queen's  life — or  to  affirm  that  Philip  ought  not  to 
have  the  title  of  king  jointly  with  the  queen.  Under  Elizabeth, 
again,  there  were  some  new  treasons,  as  for  any  Jesuit  born  in 


228  Constitutional  History  PERIOD 

the  queen's  dominions  to  remain  in  the  realm.     But  all  along 
the  statute  of  1352  remained  the  normal  measure  of  treason. 

It  was  discovered,  however,  that  its  words  were  elastic 
enough.  We  have  some  extraordinary  stories,  for  the  truth 
of  which  I  cannot  vouch,  of  what  under  Edward  IV  was  held 
treason  by  imagining  the  king's  death.  Thus  Walter  Walker, 
dwelling  at  the  sign  of  the  Crown,  told  his  little  child  that  if 
he  would  be  quiet  he  would  make  him  heir  to  the  Crown — 
this  was  treason.  Thomas  Burdett  had  a  white  buck  in  his 
park,  which  in  his  absence  was  killed  by  Edward  IV  when 
hunting ;  Burdett  expressed  a  wish  that  the  buck  were,  horns 
and  all,  in  the  belly  of  him  who  counselled  the  king  to  do  it — 
this  was  treason,  though  Markham,  C.  J.,  refused  to  be  a  party 
to  so  iniquitous  a  judgment1.  Whether  these  stories  be  true  or 
no,  it  certainly  became  established  doctrine  under  the  Tudors 
that  an  attempt  manifested  by  some  overt  act  to  depose  the 
king,  or  compel  him  by  force  to  govern  in  a  particular  way,  is 
an  imagining  of  the  king's  death.  In  the  case  of  Lord  Essex, 
in  1600,  the  judges  declared  that  in  case  a  subject  attempts  to 
put  himself  into  such  strength  that  the  king  shall  not  be  able 
to  resist  him,  and  to  force  and  compel  the  king  to  govern 
otherwise  than  according  to  his  own  royal  authority  and 
direction,  it  is  manifest  rebellion,  and  in  every  rebellion  the 
law  intendeth  as  a  consequence  the  compassing  the  death  and 
deprivation  of  the  king,  as  foreseeing  that  the  rebel  will  never 
suffer  the  king  to  live  or  reign  who  might  punish  or  take 
revenge  of  his  treason  or /rebellion.  So  again  the  term  'levy 
war  against  the  king '  was  extended  so  as  to  include  riots  for 
political  objects;  thus  Coke  holds  that  it  is  treason  to  assemble 
for  the  purpose  of  pulling  down  not  this  or  that  enclosure,  but 
enclosures  generally,  and  in  the  seventeenth  century  (1668)  a 
riot  for  the  purpose  of  pulling  down  brothels  was  held  to  be 
treason.  Thus  by  the  process  of  interpreting  the  statute  of 
1352  what  came  to  be  known  as  'constructive  treasons'  were 
created.  For  the  most  part  these  interpretations  remain  law 
at  the  present  day ;  it  has  become  unusual  to  put  this  part  of 
the  law  in  force,  riots  are  generally  punished  under  statutes 

a  Stow's  Chronicle^  p.  430.     See  also  Reeve,  History  of  English  Law,  ed. 
Finlason,  vol.  ill,  p.  32  note. 


II  Felony  229 

merely  as  riots — but  still  in  the  main  the  so-called  constructive 
treasons  are  still  treasons. 

One  measure  of  improvement  had  been  passed.  A  statute 
of  I552  (5  and  6  Edward  VI)  required  that  in  cases  of  treason 
there  should  be  two  witnesses,  who  are  to  testify  before  the 
accused — our  law  had  no  such  provision  for  the  case  of  other 
cringes  and  has  not  at  the  present  day. 

Another  statute  of  some  importance  was  passed  in  1495 
(ii  Hen.  VII,  c.  i):  this  provides  in  substance  that  obedience 
to  a  king  de  facto  who  is  not  also  king  dejure  shall  not  after  a 
restoration  expose  his  adherents  to  the  punishment  of  treason. 
This  act  carries  on  its  face  the  stamp  of  the  Wars  of  the 
Roses.  It  became  of  some  importance  in  after  times :  it  is 
said  that  Oliver  Cromwell's  supporters  pressed  him  to  accept 
the  crown  in  order  that  they,  in  case  of  a  restoration,  might 
have  that  protection  which  this  statute  gives  to  those  who 
obey  a  de  facto  king — obedience  to  a  lord  protector  was  not 
within  the  statute1. 

Next  below  treason   stand   the  felonies.      These  consist 

(1)  of  the  common  law  felonies,  which  consist  of  those  crimes 
which  had  been  considered  as  peculiarly  grave  at  the  time 
when  our  common  law  first  took  shape  in  the  thirteenth  cen- 
tury: homicide,  arson,  burglary,  robbery,  rape  and   larceny. 
Broadly  speaking  we  may  say  that  they  were  capital  crimes, 
save  petty  larceny,  stealing  to   less  value  than   \2d.    And 

(2)  of   certain    crimes   which   have   been    made   felony    by 
statute — and  which  also  are  punishable  by  death.     But   in 
the   course  of  the   sixteenth  century  a  new  line   is   drawn 
through  the  felonies — some  are  clergyable,   others  are   un- 
clergyable.      To  go   back   for  a  moment  to   remote  times : 
Henry  II  had  failed  in  his  attempt  to  bring  the  clergy  under 
the  ordinary  criminal  law  of  the  realm.      The  clerk  found 
guilty  of  crime  could  only  be  handed  over  to  the  bishop,  who 
would  do  no  more  than  degrade  him  from  his  orders.     Owing 
perhaps  to  the  excessive  severity  of  the  law,  the  doctrine  got 
established  that  anyone  who  could  read  was  a  clerk :  and  thus 
any  man  who  could  read  could  commit  felony  with  impunity 

1  Reference  may  also  be  made  to  Hallam,  Constitutional  History  >  vol.  in, 
c.  xv,  and  to  Stephen's  History  of  Criminal  Law ^  vol.  ll,  c.  23. 


230  Constitutional  History  PERIOD 

— women  had  no  such  immunity.  As  the  Reformation  ap- 
proaches, statutes  begin  to  interfere  with  this  state  of  things. 
In  1496  a  statute  (12  Hen.  VII,  c.  7)  deprived  all  but  ordained 
clerks  of  benefit  of  clergy,  in  case  of  wilful  murder.  Other 
statutes  follow  which  take  away  clergy  from  all  men  in 
particular  cases — thus  in  1536  certain  piratical  offences,  in 
1547  highway  robbery,  horse-stealing,  stealing  from  churches, 
in  1576  rape — and  so  forth,  and  thus  felonies  are  divided  into 
two  classes  known  as  clergyable  and  unclergyable.  Then 
again  under  an  act  of  1487  it  was  provided  that  a  person 
not  really  in  orders  should  have  his  clergy  but  once,  and 
should  be  branded  in  the  thumb,  so  that  the  fact  of  his 
conviction  might  be  apparent.  In  1622,  just  at  the  end  of 
our  period,  women  for  the  first  time  obtained  a  privilege 
equivalent  to  the  benefit  of  clergy. 

Below  the  felonies ykgain  stand  the  misdemeanours — minor 
crimes  not  punished  with  death,  but  punished  in  general  by 
fine  and  imprisonment.  Some  are  misdemeanours  by  common 
law;  many  are  the  outcome  of  statute.  The  term  misde- 
meanour is  gradually  appropriated  to  describe  these  minor 
crimes.  In  the  older  books  we  find  them  called  trespasses — 
but,  as  time  goes  on,  trespass  is  the  term  appropriated  to 
civil  wrongs,  while  misdemeanour  is  appropriated  to  crimes 
not  amounting  to  felony.  The  same  act  may  be  both 
trespass  and  misdemeanour ;  thus  if  A  assaults  B,  this  is  a 
trespass  against  B,  he  can  sue  A  for  it  in  a  civil  court  and 
recover  damages,  but  also'; it  is  a  misdemeanour;  A  can  be 
indicted  for  it  before  a  criminal  court,  and  can  be  punished 
for  it  by  fine  or  imprisonment,  or  both ;  the  same  act  has 
civil  consequences  and  penal  consequences,  it  is  a  cause  for 
civil  action  and  also  a  punishable  offence. 

Treason,  felonies,  and  misdemeanours  are  all  indictable 
offences— every  indictable  offence  falls  under  one  of  these  three 
heads.  Of  criminal  procedure  we  have  already  said  some- 
thing— the  accused  person  is  indicted  by  a  grand  jury  and 
tried  by  a  petty  jury.  The  old  procedure  by  way  of  appeal 
is  fast  dying  out  In  case  of  misdemeanour,  but  not  of  felony 
or  treason,  a  person  might  be  put  upon  his  trial  before  a  petty 
jury  without  any  indictment  by  a  grand  jury,  in  case  the 


II  Petty  Offences  231 

king's  attorney-general  took  up  the  case  and  filed  what  is 
called  a  criminal  information.  The  origin  of  the  criminal 
information  is  still  obscure — it  was  occasionally  employed 
under  the  Stuarts  for  the  prosecution  of  political  misde- 
meanours. The  king's  attorney-general  informed  the  Court  of 
King's  Bench  that  the  accused  person  had  committed  a  crime, 
and  then  that  person  was  subjected  to  trial  before  a  petty 
jury.  This  was  the  procedure  used  in  the  famous  case  of 
Sir  John  Eliot,  which  will  come  before  us  hereafter. 

An  indicted  person  was  not  allowed  to  make  his  defence 
by  counsel,  and  only  by  degrees  was  he  gaining  the  power 
of  calling  witnesses  to  give  evidence  in  his  favour.  In  criminal 
cases  the  theory  that  the  jury  were  witnesses  had  not  entirely 
given  way  before  the  theory  that  they  were  judges  of  fact — 
the  prisoner  seems  at  all  events  to  h&ve  had  no  power 
to  compel  unwilling  witnesses  to  conoid  and  testify  in  his 
favour. 

Then  again  below  these  indictable  offences  there  was 
springing  up  a  class  of  pettier  offences,  for  which  no  general 
name  had  yet  been  found,  offences  which  could  be  punished 
without  trial  by  jury  by  justices  of  the  peace.  As  yet  they 
did  not  attract  the  attention  of  lawyers,  and  it  is  only  in  the 
eighteenth  century  that  their  number  becomes  considerable. 
However,  from  time  to  time  a  statute  created  such  an  offence 
— they  were  all  of  statutory  origin :  the  justices  of  the  peace 
themselves  were  of  statutory  origin.  Thus  taking  up  the 
statute  book  of  James  I,  the  following  cases  meet  our  eye — 
he  who  is  guilty  of  tippling  in  an  ale-house  is  to  be  fined  ten 
shillings,  the  offence  being  proved  by  the  oath  of  two 
witnesses  before  any  one  or  more  justice  or  justices  of  the 
peace ;  then,  again,  in  1604  we  have  a  severe  game  law :  it  is 
made  penal  for  persons  who  have  not  a  certain  amount  of 
wealth  to  keep  a  greyhound  or  a  setter — he  who  offends  can 
be  sent  to  gaol  for  three  months  on  the  offence  being  proved 
by  two  witnesses  before  two  or  more  justices  of  the  peace — 
and  so  forth.  Parliament  has  undertaken  to  regulate  divers 
trades  and  industries  in  a  very  elaborate  way,  and  a  breach 
of  these  regulations  is  often  made  an  offence  for  which  the 
oftender  can  be  subjected  to  a  small  fine  or  a  short  term 


232  Constitutional  History  PERIOD 

of  imprisonment  by  justices  of  the  peace  without  any  trial 
by  jury.  In  short,  what  we  in  our  day  know  as  offences 
punishable  upon  summary  conviction,  as  contrasted  with  in- 
dictable offences,  are  becoming  not  uncommon. 

|  The  justices  of  the  peace  have  by  this  time  become  very 
important  persons.  They  are  attracting  attention,  and  books 
are  written  about  their  duties,  in  particular  that  excellent 
book,  Lambard's  Eirenarcha.  For  every  shire  a  number  of 
country  gentlemen  are  appointed  justices  of  the  peace  by  the 
king.  The  boroughs  are  often  privileged  by  their  charters  to 
elect  their  own  justices — sometimes  the  county  justices  have 
no  jurisdiction  over  the  borough,  sometimes  the  county  and 
borough  justices  have  a  concurrent  jurisdiction:  this  depends 
on  the  wording  of  the  borough  charters.  The  duties  of  the 
justices  have  by  this  time  become  very  miscellaneous.  In  the 
first  place,  four  tim£s  a  year  they  hold  sessions  of  the  peace 
for  the  county — quarter  sessions — and  there  they  exercise  a 
high  criminal  jurisdiction:  they  can  try  almost  all  offenders: 
they  try  with  a  petty  jury  those  who  are  indicted  by  a  grand 
jury.  In  the  second  place,  out  of  quarter  sessions  they 
exercise  those  statutory  powers  of  summary  trial  of  small 
offences  of  which  I  have  just  spoken.  In  the  third  place,  we 
find  already  the  germs  of  another  function  which  has  become 
very  important  in  our  own  day,  namely,  the  preliminary 
examination  of  prisoners  accused  of  indictable  offences.  We 
now  are  accustomed  to  see  a  person  accused  of  crime  taken 
before  a  magistrate,  who  either  commits  him  to  prison  until 
trial,  or  lets  him  out  on  bail  until  trial,  or,  holding  that  there 
is  no  case  against  him,  dismisses  the  charge.  The  preliminary 
trial,  for  such  we  may  call  it,  before  the  justice  of  the  peace 
has  grown  up  slowly — but  we  can  see  the  germs  of  it  in  the  six- 
teenth century.  Ever  since  their  institution  in  Edward  Ill's 
reign  the  duty  of  seeing  to  the  arrest  of  suspected  persons 
has  been  passing*out  of  the  sheriffs  hands  into  the  hands  of 
the  justices — it  is  for  the  justices  to  bail  the  prisoner  if  by  law 
he  be  entitled  to  bail,  or  to  commit  him  to  prison.  Then  acts 
of  1554  and  1555  directed  the  justices  to  examine  the  prisoner 
and  his  accusers,  to  put  the  examination  into  writing,  and 
send  it  to  the  court  before  which  the  prisoner  was  to  stand 


II  Duties  of  the  Justices  233 

his  trial.  However,  we  must  not  suppose  that  this  examination 
was  very  like  that  to  which  we  are  now  accustomed.  The 
object  of  it  is  not  to  hold  an  impartial  inquiry  into  the  guilt 
or  innocence  of  the  prisoner,  and  to  set  him  free  if  there  is 
no  case  against  him,  but  rather  to  question  him  and  to  get  up 
the  case  against  him  £the  justice  of  the  peace  here  plays  the 
part  rather  of  a  public  prosecutor  than  of  a  judge.  Fourthly, 
the  justices  of  the  peace  have  acquired  a  control  over  the 
constabulary  of  the  countW  Arrests  are  now  generally  made 
not  by  the  hue  and  cry  as  in  old  times,  but  byj:onstahlfis 

who  are  often  empowered  to  make  the  arrest  by  warrants 

* '  "***"**•**  "*  •       --  -     i  -  —     •  '•'      ""•  ~     „  i_,  i  T  t  -  —.,,,, ,,_ J_^..— — ^*^*******M>^~— 

issuedbv^the  justices:Lj/The  validity  of  such  warrants  is  in 
Coke^d ay  still  a  matter  of  some  doubt,  but  in  course  of  time 
their  scope  is  widened.  Often  the  first  step  in  a  prosecution 
is  now  an  application  to  a  justice  for  a  warrant  for  the  arrest 
of  a  suspected  person.  Fifthly,  the  justices  have  acquired 
powers  which  we  may,  I  think,  call  governmental.  In  par- 
ticular, the  new  Poor  Law  system  instituted  by  the  act  of 
1601  is  placed  under  their  control:  so  is  the  new  highway 
system.  Quarter  sessions  thus  become  not  merely  a  criminal 
court  for  the  county,  but  also  a  governmental  assembly,  a 
board  with  governmental  and  administrative  powers.  It  thus 
takes  the  place  of  the  old  county  court,  which  has  sunk  into 
being  a  court  held  by  the  sheriff  or  his  under-sheriff  for  the 
decision  of  petty  civil  causes — chiefly  cases  of  small  debts. 
Parliamentary  elections  are  still  said  to  be  held,  as  of  old,  in 
the  county  court ;  but  probably  a  parliamentary  election  is 
the  one  occasion  on  which  freeholders  attend  ;  the  small 
judicial  business  of  the  court  is  transacted  by  the  sheriff  or 
his  deputy. 

(K  very  noticeable  feature  in  English  history  is  the  decline 
and  fall  of  the  sheriff,  a  decline  and  fall  which  goes  on  con- 
tinuously for  centuries.  In  the  twelfth  century  he  is  little 
less  than  a  provincial  viceroy.  All  the  affairs  of  the  county: 
justice,  police,  fiscal  matters,  military  matters,  are  under  his 
control.  Gradually  he  loses  power:  new  institutions  grow 
up  around  him  and  overshadow  him.  As  to  justice:  first 
the  king's  itinerant  judges,  then  the  justices  of  the  peace 
deprive  him  of  judicial  work:  his  county  court  becomes  a 


234  Constitutional  History  PERIOD 

court  for  petty  debts  :  the  functions  of  his  tourn  are  now 
performed  by  justices  of  the  peace  with  statutory  power  for 
punishing  small  offences:  he  may  never  be  a  justice  in  his 
own  county.  The  control  over  the  constabulary  has  slowly 
slipped  from  his  fingers  and  is  grasped  by  the  justices  of 
the  peace.  He  is  even  losing  his  powers  as  a  tax  collector ; 
parliament  makes  other  provisions  for  this  matter,  and  what 
he  has  still  to  do  is  very  subordinate  work.  Lastly,  he  is  no 
longer  head  of  the  county  force,  the  posse  comitatus.  Under 
'the  Tudors  the  practice  begins  of  appointing  a  permanent 
Lord-Lieutenant  to  command  the  military  force,  the  militia 
it  is  coming  to  be  called,  of  the  shire. 

One  of  the  immediate  causes  of  this  decline  and  fall  is 
that  the  sheriff  has  become  an  annual  officer.  In  the  four- 
teenth century  the  sheriff  was  well  hated  as  the  oppressor  of 
the  county:  he  hadA^ken  the  county  at  a  rent  and  tried  to 
make  the  most  out  o£  it  Having  failed,  as  we  have  before 
noted,  in  obtaining  elected  sheriffs,  parliament  set  itself  to 
obtain  annual  sheriffs,  and  ultimately  succeeded.  This  took 
a  series  of  statutes  extending  over  near  a  century,  from  1354 
(28  Edw.  Ill,  a  7)  to  1444  (23  Hen.  VI,  c.  7).  No  matter 
what  statute  may  say,  the  sheriffs  remain  in  office  ten  and 
twelve  years :  however,  in  the  fifteenth  century  this  point  is 
won.  This  seals  the  sheriffs  fate  :  an  officer  who  is  to  be  the 
head  of  the  police  and  of  the  military  force  cannot  be  an  annual 
officer.  He  falls  lower  and  lower  until  at  last  he  has  little 
more  to  do  than  to  cai^ry  out  the  judgments  of  courts  of 
justice — to  seize  the  property  of  debtors,  to  seize  their  persons, 
to  keep  the  county  gaol,  to  hang  felons.  His  office,  once  so 
profitable,  becomes  merely  a  burdensome,  expensive  task. 
The  real  work  is  done  by  an  under-sheriff,  but  the  sheriff  is 
responsible  for  his  conduct  and  must  pay  for  his  mistakes. 
Already  in  the  seventeenth  century  it  is  difficult  to  get  sheriffs 
— men  avoid  the  office  if  they  can  ;  but  they  can  be,  and  are, 
compelled  to  serve.  The  sheriff,  I  say,  falls  lower  and  lower 
in  real  power:  his  ceremonial  dignity  he  retains — he  is  the 
greatest  man  in  the  county  and  should  go  to  dinner  before 
the  Lord-Lieutenant. 

The  Lord-Lieutenant  is  originally  a  military  officer;  but 


II          Lord-Lieutenant  and  Constables      235 

he  becomes  also  the  honorary  head  of  the  justices  of  the 
peace.  From  the  first,  one  of  the  justices  has  been  specially 
charged  to  keep  the  rolls,  the  records  of  the  justices — he  is 
the  custos  rotulorum.  Generally  the  same  person  is  appointed 
Lord-Lieutenant  and  custos  rotulorum — and  it  is  in  the  latter 
character  rather  than  the  former  that  he  comes  to  be  regarded 
as  the  first  among  the  justices.  Under  Tudors  and  Stuarts 
the  justices  are  kept  well  in  hand  by  the  king's  council,  and 
the  Lord-Lieutenant  is  the  person  with  whom  the  council 
carries  on  its  correspondence.  At  least  in  later  days  justices 
of  the  peace  are  usually  appointed  on  the  recommendation  of 
the  Lord-Lieutenant,  but  he  has  no  rule  over  them,  he  is 
merely  the  first  among  equals.  The  justices  we  remember 
are  appointed  by  the  king  and  hold  their  offices  merely  during 
his  good  pleasure.  Still  the  office  is  regard  more  and  more 
as  a  permanent  office  from  which  a  man  •mould  not  lightly  be 
dismissed.  v 

Our  last  word  shall  be  as  to  the  constables.  A  con- 
stabulary in  our  modern  sense,  a  force  of  men  trained,  drilled, 
uniformed,  and  paid  there  is  not — our  modern  police  force  is 
very  modern  indeed.  But  it  has  become  the  law  that  every 
parish — or  more  strictly  speaking  every  township — is  bound 
to  have  its  constable.  The  constable  as  we  have  said  is 
originally  a  military  officer — a  petty  officer  in  the  county 
force ;  but  then  the  county  force,  the  posse  comitatus,  is  as 
much  concerned  with  making  hue  and  cry  after  malefactors 
as  with  defensive  warfare  ;  this  work  fulls  more  and  more  into 
the  constable's  hands,  and  as  the  militia  becomes  more  military 
the  constable  becomes  less  military,  more  purely,  in  our  terms, 
a  police  officer.  In  the  seventeenth  century  he  is  still  elected 
by  his  neighbours  in  the  old  local  courts,  in  those  districts  in 
which  such  courts  still  exist:  elsewhere  and  perhaps  more 
generally  he  is  appointed  by  the  justices.  Every  capable  in- 
habitant of  the  township  can  be  appointed  constable,  unless 
there  is  some  special  cause  for  exemption.  Remember  that  all, 
or  almost  all,  of  our  old  common  law  offices  are  compulsory 
offices — a  person  appointed  cannot  refuse  them.  To  this  day 
a  man  may  be  made  sheriff  or  mayor  of  a  borough  against 
his  will.  Generally  the  person  chosen  as  constable  was 


236  Constitutional  History      PERIOD  II 

allowed  to  find  a  respectable  substitute — and  this  he  could  do 
for  £5  or  £10:  the  office  was  annual.  The  constable  had  no 
salary,  but  he  was  entitled  to  demand  certain  fees  for  some 
part  of  his  business.  His  chief  business  was  the  apprehension 
of  malefactors,  and  for  this  purpose  he  was  armed  with  certain 
powers  additional  to  those  which  the  ordinary  man  has :  thus 
it  was  sometimes  safe  for  a  constable  to  make  an  arrest  on 
suspicion,  when  it  would  not  have  been  lawful  for  a  private 
man.  It  is  well  to  remember  that  the  constable  is  an  officer 
long  known  to  our  common  law :  a  great  part  of  the  peculiar 
powers  of  the  modern  policeman  are  due  to  this — that  he  is 
a  constable,  and  as  such  has  all  those  powers  with  which  for 
centuries  past  a  constable  has  been  entrusted  by  law.  Gradually 
the  constables  come  more  and  more  under  the  control  of  the 
justices  of  the  pence — in  particular,  it  becomes  less  and  less 
usual  for  arrests  t<)  tie  made  without  the  warrant  of  justices, 
and  in  executing  ?uch  warrants  the  constable  has  special 
protection. 

Let  me  remind  you  in  conclusion  that  there  is  one  book 
for  the  vacation  in  which  some  profitable  things  may  be 
found  about  Elizabethan  justices  and  Elizabethan  constables 
— if  you  cannot  yet  enjoy  Lambard's  Eirenarcha,  you  can  at 
least  enjoy  Shallow  and  Silence,  Dogberry  and  Verges. 


PERIOD   III. 

SKETCH  OF  PUBLIC  LAW  AT  THE  DEATH 
OF  JAMES  I. 

THE  next  point  at  which  we  will  take  cur  stand  is  the 
death  of  James  I  and  the  quiet  accession  of  Charles  I.  Let 
us  once  more  remember  that  we  are  neglecting  what  certainly 
are  the  most  obvious  divisions  of  our  V^pry.  The  Tudor 
period  is  a  distinct,  well-marked  period,  Nana-  anyone  who  was 
w-iting  the  history  of  England  would  ha\fe  to  mark  it  as  such. 
But  we  are  not  attempting  any  such  task ;  rather  we  are 
pp-^posely  choosing  unusual  points  of  view  in  order  that  we 
\\s  see  familiar  facts  in  new  lights — our  attempt  is  to 
supplement  our  books  of  history.  And  I  want  very  much 
to  bring  out  the  fact  that  the  history  of  our  public  law 
regarded  as  a  whole  is  very  continuous :  the  very  greatest 
events  that  occur  in  it  do  not  constitute  what  can  fairly  be 
termed  revolutions.  The  Tudor  monarchy  is  indeed  some- 
thing very  different  from  the  Lancastrian — the  latter  was  a 
very  limited  monarchy,  the  former,  if  we  regard  its  practical 
operation,  seems  almost  unlimited.  Still  the  difference,  when 
we  look  into  it,  is  found  not  so  much  in  the  nature  of  the 
institutions  which  exist  as  in  the  spirit  in  which  they  work  : 
the  sarhe  machinery  of  king,  lords,  commons,  council,  law 
courts,,  seems  to  bring  out  very  different  results.  Again  there 
is  no  one  minute  at  which  the  change  takes  place — it  is  not 
like  a  change  in  law  which  must  take  place  at  some  assignable 
date.  The  Tudor  kingship  differs  from  the  Lancastrian  king- 
ship— but  what  are  we  to  say  of  the  two  Yorkist  kings  ?  A 
distinguished  modern  historian  prefers  to  make  what  he  calls 
the  New  Monarchy  begin  not  with  Henry  VII,  but  with 


238  Constitutional  History  PERIOD 

Edward  IV — we  have  indeed  an  intermediate  time.  So  again 
at  the  end  of  the  period,  before  the  death  of  James  I,  the 
relation  of  the  parliament  to  the  king  is  practically  very 
different  from  what  it  was  under  Elizabeth :  but  the  change 
has  not  been  sudden  ;  gradually  for  some  time  past  parlia- 
ments have  been  becoming  more  independent :  there  has  been 
no  great  change  in  the  law,  but  there  has  been  a  slow  change 
in  the  working  of  the  law 

A     Parliament. 
r.     Constitution  of  Parliament, 

There  have  been  no  very  great  changes  in  the  constitution 
of  parliament.  We  look  first  at  the  House  of  Lords.  The 
parliaments  of  Henry  VII  had  contained  two  archbishops, 
nineteen  bishops,  rj~fid  twenty-eight  abbots,  in  all  forty-nine 
spiritual  peers.  After  the  dissolution  of  the  monasteries  in 
1540  the  abbots  disappear,  but  six  new  bishoprics  are 
founded,  Oxford,  Peterborough,  Gloucester,  Bristol,  Chester 
and  Westminster,  and  their  occupants  as  a  matter  of  coi  ^ 
are  summoned  to  the  House  of  Lords  though  they  holdW^J 
baronies.  The  bishopric  of  Westminster,  however,  had  no 
long  continuance  :  it  was  dissolved  in  1550,  so  the  number  of 
spiritual  peers  fell  to  twenty-six.  The  number  of  the  temporal 
peers  does  not  increase  rapidly  during  the  Tudor  reigns:  a 
new  peerage  was  seldom  created,  save  when  an  old  peerage 
was  extinguished  ;  during  the  whole  period  it  fluctuates  (on 
account  of  minorities  arid  so  forth)  round  fifty.  Thus  after 
the  dissolution  of  the  monasteries,  the  spiritual  peers  became 
a  minority.  A  change  comes  with  James  I ;  he  throws  about 
peerages  with  a  lavish  hand :  eighty-two  lay  peers  s<*t  in  his 
first  parliament,  ninety-six  in  his  last.  Peers  are  now  invariably 
created  by  letters  patent  definitely  granting  the  dignit^  The 
bishops  have  become  distinctly  royal  nominees.  Practically 
for  a  long  time  past  the  king  had  usually  had  his  way  about 
the  appointment  of  bishops ;  his  only  competitor  was  the 
Pope — but  the  form  of  election  by  the  cathedral  chapters  was 
maintained.  In  1 531  a  statute,  one  of  the  first  statutes  directed 
against  Rome,  dealt  with  this  matter:  the  king  gives  the 


ill  Constitution  of  Parliament  239 

chapter  his  licence  to  elect  a  bishop,  but  along  with  this 
congt  d'ttire,  he  sends  letters  recommending  a  candidate,  and 
if  he  is  not  elected  within  twelve  days  then  the  king  may 
appoint  a  bishop  by  letters  patent.  Capitular  election  is 
therefore  but  a  solemn  formality.  In  Edward  VTs  reign  even 
the  congt  cTttire  was  abolished  by  statute;  the  bishops  were  to 
be  appointed  simply  by  the  king's  letters  patent.  The  act 
which  did  this  was  of  course  repealed  under  Mary,  and  was 
not  re-enacted  by  Elizabeth,  who  re-enacted  the  statute  of  her 
father's  reign,  which  still  is  law.  We  observe  therefore  that 
over  the  constitution  of  the  House  of  Lords  the  king  has  great 
powers  :  he  practically  appoints  all  the  spiritual  peers ;  he  can 
make  as  many  new  lay  peerages  as  he  pleases. 

The  House  of  Commons  has  considerably  increased.  By 
an  act  of  1535  (27  Hen.  VIII,  c.  26)  Wales  was  brought  fully 
within  the  system  of  English  public  /lavw.  Monmouthshire 
became  an  English  county  with  two  members,  and  two  for 
the  borough  of  Monmouth.  Each  of  the  twelve  counties  into 
which  Wales  was  divided  sent  one  member,  and  eleven  Welsh 
troughs  sent  each  one  member.  By  another  act  of  1543 
^34  Hen.  VIII,  c.  13)  two  members  were  given  to  the  county, 
two  to  the  city  of  Chester ;  thus  this  ancient  palatinate  was 
incorporated  in  the  general  body  of  the  realm ;  Durham 
remained  un/eprescnted  until  after  the  Restoration.  Thus 
thirty-one  members  were  added.  For  a  short  time  Calais  was 
represented,  but  that  last  relic  of  the  king's  French  possessions 
disappeared  RT  Mary's  reign.  But  chis  was  by  no  means  all : 
the  king,  we  ifemember,  had  exercised  the  power  of  conferring 
on  boroughs  the  right  to  send  members.  Hitherto  this  power 
had  not  been  extensively  used  for  the  purpose  of  packing 
parliament,  and  Henry  VIII  used  it  but  very  sparingly:  he 
gave  the  right  to  but  five  boroughs.  Under  Edward  VI  the 
power  was;  lavishly  used  for  political  purposes  :  he  thus  added 
forty-eight  members,  Mary  twenty-one,  Elizabeth  sixty,  James 
twenty-seven.  The  number  of  burgesses  in  the  lower  house 
was  thus  Vastly  increased,  and  with  it  the  power  of  the  crown. 
When  a  new  borough  was  created,  and  when  a  new  charter 
was  granted  to  an  old  borough,  care  was  generally  taken  to 
vest  the  right  of  election  not  in  the  mass  of  the  burgesses,  but 


240  Constitutional  History  PERIOD 

in  a  sma.ll  select  governing  body — a  mayor  and  council — 
nominated  in  the  first  instance  by  the  crown,  and  afterwards 
self-elected.  Meanwhile  the  qualification  for  the  county  fran- 
chise was  not  altered  ;  it  was  still,  under  the  act  of  Henry  VI, 
the  forty-shilling  franchise,  a  qualification  which,  as  the  value 
of  money  fell,  was  becoming  somewhat  low  and  very  capricious. 
The  copyholder  now  often  had  just  as  valuable  an  estate  as 
the  freeholder;  it  was  fully  protected  by  the  king's  courts,  and 
his  ancient  services  had  been  commuted  for  money  rents, 
which,  as  the  value  of  money  fell,  became  less  and  less  burden- 
some— still  he  had  no  vote.  Towards  the  end  of  our  period 
we  begin  to  see  many  signs  that  to  be  a  member  of  parliament 
is  coming  to  be  an  object  of  desire :  contested  elections  are 
keenly  fought.  James  I  gave  the  right  to  be  represented  by 
two  members  to  each  of  the  two  Universities. 

The  time  has  come  when  we  can  no  longer  speak  of  the 
clergy  as  forming  lor /any  practical  purpose  an  estate  of  the 
realm.  We  have  seen  that  they  had  neglected  to  obey  the 
praeimmientes  clause,  but  had  voted  their  taxes  in  their  con- 
vocations. They  still  vote  their  taxes  in  convocation,  but 
since  1540  the  practice  has  grown  up  of  passing  an  act  of 
parliament  to  confirm  the  vote,  as  if  it  might  be  doubted 
whether  the  convocations  could  bind  the  clergy.  We  have  to 
remember  that  the  church  can  now  no  longer  claim  to  be 
independent  of  the  state.  The  clergy  have  been  compelled 
to  admit  the  royal  supremacy.  In  1534  th&  convocations 
were  compelled  to  promise  that  they  would  ?iake  no  new 
ecclesiastical  canons  without  the  king's  licence  '&nd  approval, 
and  this  principle  was  confirmed  by  act  of  parliament  Even 
then  within  the  purely  ecclesiastical  sphere  the  convocations 
can  do  nothing  without  the  royal  assent,  and  the  doctrine  has 
grown  up  that  such  canons,  even  though  they  have  the  royal 
assent,  are  not  binding  on  the  laity1.  ; 

*  2.     Privileges  of  Parliament. 

We  have  as  yet  said  nothing  of  what  are  knojvn  as  the 
privileges  of  parliament,  but  this  subject  can  no  longer  be 
postponed,  for  it  is  becoming  of  first-rate  importance.  Under 
this  head — privileges  of  parliament — it  is,  or  was,  usual  to  mix 

i  See  pp.  5"— 3- 


ill  Freedom  of  Debate  241 

together  several  distinct  matters.  Let  us  notice  first  two  of 
the  usual  sub-heads,  (a)  freedom  of  speech,  and  (b)  freedom 
from  arrest. 

(a)  During  the  Middle  Ages  the  right  of  each  house  to 
debate  freely  and  without  interference  from  the  king  or  from 
the  other  house  seems  to  have  been  admitted  and  observed. 
It  is  common  in  this  context  to  mention  the  case  of  Thomas 
Haxey ;  in  1397.  a  bill  was  laid  before  the  commons  and 
accepted  by  them,  which  contained  a  bold  attack  on  Richard  II 
and  his  courtiers.  The  king  took  offence,  demanded  the  name 
of  the  person  who  introduced  the  bill ;  Haxey's  name  was 
given  up  ;  the  lords  declared  that  anyone  who  stirred  up 
the  commons  to  make  such  demands  was  a  traitor;  they 
condemned  Haxey  to  die,  but  the  Archbishop  claimed  him  as 
a  clerk,  so  he  was  not  executed,  and  was  soon  afterwards 
pardoned:  in  1399,  shortly  after  the  accession  of  Henry  IV, 
the  judgment  was  annulled  on  the  petition  of  the  commons 
as  contrary  to  their  liberties.  One  of  the  curious  points  about 
this  case  is  that  Haxey,  to  all  seeming,  was  not  a  member  of 
the  House  of  Commons;  it  is  thought  that  he  may  have  been  a 
clerical  proctor  attending  parliament  under  the  praemunientes 
clause.  Such  an  interference  with  the  freedom  of  debate  seems 
to  stand  almost  alone  in  our  medieval  history;  but  in  1376 
Peter  de  la  Mare,  the  Speaker,  was  thrown  into  prison  for  his 
conduct  in  ffie  Good  Parliament,  and  remained  in  prison  until 
after  the  death  of  Edward  III,  when  Richard  released  him  ; 
again  in  1453  the  Speaker,  Thomas  Thorpe,  was  imprisoned — 
the  cause  seems  to  have  been  his  opposition  to  the  Duke  of 
York ;  he  was  however  prosecuted  on  a  private  pretext  and 
imprisoned.  This  occurred  during  a  prorogation.  When  the 
commons  again  met  they  demanded  their  Speaker — they 
demanded  of  the  king  and  lords  that  they  might  have  their 
ancient  privilege  ;  the  lords  however  refused  their  petition 
and  determined  that  Thorpe  should  remain  in  prison.  Here, 
though  the  real  cause  of  arrest  may  have  been  conduct  in 
parliament,  the  arrest  was  made  in  a  civil  action  under  the 
judgment  of  a  court  of  law,  and  it  bears  therefore  rather  on 
freedom  from  arrest  than  on  freedom  of  speech.  A  much 
more  important  precedent  occurred  under  Henry  VIII  in 

M  16 


242  Constitutional  History  PERIOD 

1512.  Sj£od£^J^member  of  the  commons  house,  was  im- 
prisoned by  the  Stannary  Court  for  having  proposed  certain 
bills  in  parliament  to  regulate  the  privilege  of  the  tin  miners. 
A  statute  was  therefore  passed  declaring  void  the  proceed- 
ings against  him,  and  declaring  in  a  general  way  that  any 
proceedings  against  any  member  of  the  present  parliament  or 
of  any  future  parliament  for  any  speaking  in  parliament  should 
be  utterly  void  and  of  none  effect.  This  was  a  statutory 
recognition  of  the  freedom  of  debate.  In  Charles  I's  day  the 
king's  party  had  to  contend  that  this  was  no  general  statute, 
but  had  reference  only  to  the  particular  case  of  Strode ; 
the  judges  in  the  famous  case  of  Sir  John  Eliot  upheld  this 
contention ;  then  in  the  Long  Parliament  the  commons 
resolved  that  Strode's  Act  was  a  general  act,  and  the  lords 
concurred  in  this  resolution :  but  all  this  still  lies  in  the 
future.  In  1541  for  -the  first  time  the  Speaker  at  the  be- 
ginning of  the  session!  included  freedom  of  speech  as  among 
the  ancient  and  undoubted  rights  and  privileges  which  the 
commons  claimed  of  the  king,  and  thenceforward  it  became 
the  regular  practice  that  the  Speaker  should  demand  this 
privilege.  It  is  during  the  reign  of  Elizabeth  that  this 
privilege  becomes  a  matter  of  contention,  though  the  queen 
cleverly  manages  that  disputes  shall  be  compromised.  In 
1566  she  prohibits  the  commons  from  discussing  the  succes- 
sion to  the  crown,  but  then  gives  way,  revokes  the  prohibition, 
and  the  commons  are  grateful  In  1571  Strickland,  who  has 
introduced  some  ecclesiastical  bills,  is  called  before  the  council 
and  ordered  not  to  appear  again  in  parliament ;  the  queen 
again  gives  way.  In  1576  Peter  Wentworth  makes  trenchant 
speeches  about  freedom  of  debate ;  the  commons  are  against 
him,  and  themselves  commit  him  to  the  Tower.  The  same 
fate  befalls  him  in  1588.  The  commons  acquiesce  in  the 
queen's  command  that  they  shall  avoid  religious  topics.  In 
1593  she  is  very  positive — members  are  only  to  vote  'Aye*  or 
'No/  and  ecclesiastical  matters  are  not  to  be  discussed;  one 
Morice  is  committed  to  prison  for  introducing  an  ecclesiastical 
bill.  The  commons  seem  during  these  years  very  submissive, 
especially  about  ecclesiastical  matters :  they  seem  to  feel  that . 
the  time  is  full  of  dangers,  and  that  the  queen  understands 


in  Freedom  from  Arrest  243 

religious  matters  better  than  they  do  themselves.  With 
James  on  the  throne  circumstances  have  changed:  in  1614, 
when  he  dissolves  his  second  parliament,  he  commits  four 
members  to  the  Tower;  in  1621  Sandys  is  committed,  and 
James  tells  the  commons  pretty  distinctly  that  their  privileges 
exist  by  his  sufferance.  The  result  of  this  is  the  Protestation 
of  1 8  December,  1621 :  the  commons  declare  that  the  privileges 
of  parliament  are  the  ancient  and  undoubted  birthright  of  the 
subjects  of  England — that  the  commons  may  handle  any 
subject,  and  enjoy  a  complete  freedom  of  speech1.  James 
sends  for  the  journals  of  the  commons,  tears  out  the  protest 
with  his  own  hand,  and  dissolves  parliament.  On  the  whole, 
we  see  that  when  Charles  comes  to  the  throne  there  are  plenty 
of  materials  for  a  conflagration. 

(b)  The  topic  of  freedom  from  arrest  is  connected,  as  we 
have  seen,  with  that  of  freedom  of  sppech,  but  it  is  wider. 
Not  only  do  members  of  parliament  claim  that  they  are  not 
to  be  arrested  for  words  spoken  in  tl^e  house,  but  they  claim 
a  general  immunity  from  the  ordinary  law.  We  have  here 
therefore  to  note  that  until  very  lately  our  law  made  a  free 
use  of  imprisonment,  not  merely  in  criminal  cases,  but  in  civil 
cases  also;  a  debtor  against  whomc'a  judgment  had  been 
obtained  could  be  imprisoned  unti.  he  paid  the  debt — he 
could  be  taken  in  execution  ;  but  also  a  defendant  in  a  civil 
action  could  very  generally  be  imprisoned  as  soon  as  the 
action  was  begun,  unless  he  found  bail  for  his  appearance  in 
court.  Now  the  lords  from  an  aarly  time  seem  to  have 
enjoyed  a  considerable  immunity  from  arrest  except  on 
criminal  charges,  and  the  representxtives  of  the  commons 
seem  to  have  claimed  a  similar  liberty  during  the  session  of 
parliament  and  for  a  certain  time  before  and  after  the  session 
reasonably  necessary  for  their  coming  and  going — exemption 
frorn^arrest  upon  criminal  charges,  at  least  in  case  of  treason, 
felony  or  breach  of  the  peace,  was  not  claimQd.  A  statute  of 
1 1  flen.  VI,  c.  1 1  (1433)  gave  some  sanction  to  this  privilege — 
he  who  assaulted  a  member  attending  parliament  was  to  pay 
double  damages.  The  privilege  was  invaded  in  Thorpe's 
case,  and  the  invasion  was  sanctioned  by  the  House  of  Lords  : 
but  the  judges  who  were  consulted  expressed  themselves  very 

1  Pro  there,  Constilttiional  Statutes  and  Documents,  p.  313. 

1 6 — 2 


244  Constitutional  History  PERIOD 

positively  as  to  its  existence,  and  further  made  a  declaration 
which  was  to  be  of  great  importance  in  the  future,  to  the  effect 
that  the  courts  of  law  could  not  measure  the  privileges  of 
parliament,  these  being  matters  which  could  only  be  deter- 
mined by  parliament  itself.  The  houses,  in  particular  the 
House  of  Commons,  by  degrees  carried  the  principle  further 
and  further.  In  1543,  in  Ferrer's  case,  they  began  a  practice 
of  sending  their  sergeant  to  deliver  a  member  arrested  for 
debt,  and  Henry  VIII  admitted  the  existence  of  the  privilege. 
In  1575  they  delivered  one  Smalley,  a  member's  servant, 
arrested  for  debt.  In  1603  they  delivered  Sir  Thomas  Shirley, 
who  had  been  arrested  for  debt;  this  produced  the  passing  of 
an  act  (i  Jas.  I,  c.  13),  which,  while  it  fully  admitted  and  gave 
statutory  sanction  to  the  existence  of  the  privilege,  yet  made 
certain  provisions  for  the  benefit  of  the  creditor.  In  the 
seventeenth  century  this  privilege  grew  to  huge  dimensions;  it 
became  almost  impossible  to  get  any  justice  out  of  a  member 
of  parliament,  and  limits  had  to  be  set  to  what  had  become 
an  intolerable  nuisance. 

(c)  Connected  with  these  matters  is  the  power  (or  if  we 
please  to  call  it  so,  the  privilege)  of  each  house  to  punish 
persons  (whether  they  be  members  of  it  or  no)  for  a  contempt. 
Already  in  1548  we  find  the  commons  committing  John  Storie, 
one  of  their  members,  to  the  Tower,  probably  for  having  spoken 
disrespectfully  of  Somerset  the  Protector.  From  1581  we 
have  Hall's  case.  Arthur  Hall,  member  for  Grantham,  has 
published  a  book  deroga\ory  to  the  authority  and  power  of 
the  house ;  his  punishment  is  severe ;  by  an  unanimous  vote 
the  commons  expelled  hiin,  fined  him  500  marks,  and  sent 
him  to  the  Tower.  In  1585  they  expelled  Dr  Parry  for 
having  spoken  too  warmly.  But  they  also  took  on  themselves 
to  punish'  those  who  were  not  members  of  the  house.  Not 
only  did  they  commit  to  prison  those  who  interfered  with 
their  immunity  from  arrest,  but  they  also  punished  some  who 
spoke  against  the  house:  thus  in  is86'one  Bland  was  fined 
for  having  used  contumelious  expressions  against  the  House. 
But  they  have  not  been  content  with  punishing  persons  who 
have  insulted  the  house:  in  1621  they  condemned  one  Floyd, 
who  had  expressed  his  satisfaction  in  the*  success  of  the 
Catholic  cause  in  Germany,  to  pay  a  fine  of  ;£iooo  and  to 


ill  Jurisdiction  of  Parliament          245 

stand  in  the  pillory.  The  lords  resented  this  assumption  of 
judicial  power,  and  the  commons  admitted  that  they  were  in 
the  wrong — that  they  had  no  jurisdiction  except  when  the 
privileges  of  their  own  house  were  infringed.  Floyd  however 
did  not  profit  by  this:  the  lords  condemned  him  to  a  fine  of 
,£5000  and  whipping  and  branding,  besides  the  pillory.  The 
story  is  disgraceful  to  both  houses.  Here  again  it  is  evident 
enough  that  the  constitution  is  not  working  peacefully ;  both 
the  king  and  the  two  Houses  of  Parliament  are  ready  to 
commit  acts  of  very  questionable  legality, 

3.    Jurisdiction  of  Parliament. 

This  leads  us  to  speak  of  the  judicial  functions  of  par- 
liament— for  it  is  sometimes  reckoned  among  the  'privileges' 
of  the  House  of  Lords  that  the  judicial/  power  of  parliament 
belongs  to  it.  Such  a  use  of  the  were!  privilege  is  not  very 
accurate  or  convenient — but  nevertheless  should  be  observed. 
This  matter  has  already  come  before  us  in  the  past1;  we  have 
seen  that  the  representatives  of  the  commons  never  gained  a 
share  in  the  judicial  work  of  the  parliament — in  I  Hen.  IV 
(1399)  they  had  protested  that  they  were  not  judges,  and 
shortly  before  the  occurrence  of  Floyd's  case,  after  a  search 
for  precedents,  they  had  come  to  the  conclusion  that  they  had 
no  power  to  punish  save  for  a  contempt  of  their  house ;  in 
Floyd's  case  they  were  reminded  of  these  declarations  and 
tor  a  while  attempted  to  evade  them,  but  in  the  end  gave 
way.  The  judicial  work  of  parlialment,  done  by  the  House 
of  Lords,  we  have  on  a  former  occasion  brought  under  three 
heads. 

(a)  As  a  court  for  correcting  the  errors  in  law  of  the 
ordinary  law  courts,  the  House  of  Lords  did  very  little  during 
the  greater  part  of  the  period  that  is  under  our  review: 
hardly  a  case  of  error  is  to  be  found  between  Henry  IV  and 
Elizabeth.  The  infrequent  sessions  of  parliament,  the  fact 
that  the  council  had  assumed  a  very  wide  power  of  judicature, 
may  be  the  causes  of  this.  About  1580  however  this,  among! 
other  powers  of  the  parliament,  was  revived ;  the  lords  began! 
once  more  to  hear  cases  of  error,  and  a  statute  of  1585  distinctly 

1  p.  214  ft. 


246  Constitutional  History  PERIOD 

recognized  their  power  to  do  so.  A  little  later  they  began 
also  to  hear  both  civil  and  criminal  cases  as  a  court  of  first 
instance.  For  this  they  had  but  few  precedents — it  is  said 
that  they  could  find  but  pne  between  1403  and  1602.  They 
did  not,  as  we  shall  afterwards  see,  ultimately  succeed  in 
establishing  their  right  to  act  as  a  court  of  first  instance,  but 
from  about  162 1  onwards  until  the  civil  war  they  did  so  act ;  and 
in  the  year  1625,  at  which  we  have  placed  ourselves,  perhaps  we 
ought  to  say  that  it  is  somewhat  doubtful  whether  they  may 
do  so  or  no — here  again  is  an  open  question  raised  by  the 
renewed  activity  of  parliament 

(V)  That  a  peer  charged  with  felony  or  treason  ought 
to  be  tried  by  the  House  of  Lords  if  that  house  be  sitting, 
and  if  not  then  by  the  Court  of  the  Lord  High  Steward  is 
now  an  admitted  principle;  but  such  trials  have  been  far  from 
common.  *  \ 

(c)  The  procedure  by  way  of  impeachment  has  just  been 
revived.  It  seems  true  to  say  that  there  is  no  case  of  an 
impeachment  between  that  of  the  Duke  of  Suffolk  in  1449 
and  that  of  Sir  Giles  Mompesson  in  1621,  which  was  at  once 
followed  by  those  of  Mitchell,  Bacon  and  others  :  Mompesson 
and  Mitchell  were  commoners,  impeached  of  fraud,  violence 
and  oppression.  The  impeachment  of  Bacon  for  bribery  is 
still  more  important,  for  he,  of  course,  was  a  minister  of  the 
king — he  .was  chancellor.  In  1624  the  Earl  of  Middlesex,  the 
Lord  Treasurer,  was  impeached  for  bribery  and  other  mis- 
demeanours. It  is  evidenj;  that  parliament  has  unearthed  a 
weapon  of  enormous  importance.  During  the  Tudor  reigns, 
matters  had  stood  differently;  there  was  no  talk  of  impeaching 
the  ministers  of  Henry  VIII,  and  when  he  had  made  up  his 
mind  to  destroy  an  enemy  or  a  too  powerful  servant  he  made 
use  of  an  act  of  attainder.  Cromwell  had  by  the  king's 
command  obtained  an  opinion  from  the  judges  to  the  effect 
that  by  an  act  of  attainder  a  man  might  lawfully  be  con- 
demned without  a  trial,  though,  they  said,  this  would  form  a 
dangerous  precedent.  Under  such  an  act  it  was  that  Cromwell 
himself  perished.  An  act  of  attainder,  you  will  remember,  is 
in  form  not  a  judicial  but  a  legislative  act,  a  statute  made  by 
the  king  with  the  consent  of  lords  and  commons. 


1 1 1  Money-Bills  247 

4.     Functions  of  the  Commons  in  granting  money. 

The  function  of  originating  money-bills  is  sometimes 
reckoned  among  the  privileges  of  the  House  of  Commons — 
at  any  rate  jt  Is~tKe  function  of*  ERaTlio'use;'' "We"  have  seen 
it  growing  in  the  past — in  particular  we  have  noticed  the 
state  of  things  under  Henry  IV1.  The  matter  becomes  clearer 
during  the  period  which  we  are  now  surveying.  To  grant 
subsidies  is  the  function  of  the  commons,  but  the  grant  requires 
the  authority  of  a  statute  enacted  by  king,  lords  and  commons. 
In  1593  the  commons  resent  a  message  from  the  lords 
reminding  them  of  the  queen's  want  of  money — the  custom 
is  that  the  offer  of  subsidies  shall  proceed  from  this  house. 
But  it  is  not  until  just  after  the  end  of  our  period  that  a 
definite  formula  is  adopted  which  expresses  the  share  of  the 
two  houses  in  the  work.  Under  Elizabeth  and  James  the 
lords  and  commons  are  sometimes  said  to  grant  the  money — 
more  frequently  the  commons  are  i.  aid  to  grant  with  the 
consent  of  the  lords.  In  the  first  parliament  of  Charles  I  we 
get  the  formula  that  is  still  in  use.  An  act  is  passed  which 
recites  that  the  commons  have  granted  a  tax,  and  then  it  is 
enacted  by  the  king,  by  and  with  the  advice  and  consent  of 
the  lords  spiritual  and  temporal  in  parliament  assembled  and 
by  the  authority  of  the  same,  that  the  tax  be  imposed.  It  is  ] 
not  until  after  the  Restoration  that  the  commons  begin  to 
contend  that  the  lords  can  make  no  alteration  in  a  money 
bill,  but  must  simply  accept  it,  or  simply  reject  it. 

5.     Right  to  determine  disputed  Elections. 

The  commons  claim  a  right  to  determine  all  questions 
relating  to  the  election  of  members  of  their  house.  Such 
questions  in  the  past  seem  to  have  been  determined  by  the 
king  in  council.  Under  Mary,  however,  we  find  the  commons 
appointing  a  committee  to  inquire  whether  Mr  Alexander 
Nowell,  prebendary  of  Westminster,  may  be  a  member  of 
this  house ;  and  it  is  declared  next  day  that  as  he  is  a 
prebendary  of  Westminster  and  as  such  has  a  voice  in 
convocation,  he  cannot  be  a  member  of  this  house,  and  that 
the  queen's  writ  ought  to  issue  for  a  new  election.  In  1586 
the  commons,  in  opposition  to  the  queen,  definitely  insist  that 

1  p.  183 


248  Constitutional  History  PERIOD 

it  is  for  them  to  inquire  into  the  circumstances  of  a  disputed 
election — and  from  this  time  forward  they  frequently  exercise 
this  function  and  it  seems  admitted  to  be  properly  theirs1. 

6.  Parliamentary  Procedure. 

It  is  during  the  period  with  which  we  are  now  dealing 
that  the  great  outlines  of  parliamentary  procedure,  as  we  now 
know  them,  are  drawn — the  practice  of  reading  bills  three 
times,  and  so  forth.  Each  house  may  manage  its  own  affairs; 
there  is  no  legislation  as  to  its  procedure,  but  gradually 
precedents  are  formed  and  respected  and  a  mass  of  traditional 
rules  is  the  outcome.  In  the  House  of  Lords  proxies  are 
admitted ;  from  an  early  time  we  find  the  king  licensing 
bishops  and  barons  to  be  present  in  parliament  by  proxy. 
In  the  sixteenth  century  it  becomes  the  rule  that  the  proxy 
must  himself  be  a  in  ember  of  the  house.  This  privilege  of 
appointing  a  proxy  setems  never  to  have  been  extended  to 
members  of  the  lowerJhouse.  Lords  also  who  dissent  from 
the  action  of  the  house  exercise  the  right  of  entering  formal 
protests  upon  its  journals;  this  practice  grows  up  in  the 
sixteenth  century;  there  is  no  similar  practice  among  the 
commons.  Each  house  conducts  its  business  in  privacy  ;  the 
king,  however,  occasionally  visits  the  House  of  Lords,  and 
makes  speeches  there  ;  a  throne  is  set  for  him  there ;  but  his 
presence  is  not  necessary,  and  in  practice  has  become  a 
somewhat  rare  event. 

7.  Frequency  and  Deration  of  Parliaments. 

We  can  have  little  /idea  as  to  what  a  parliamentary 
constitution  has  really  meant  until  we  have  considered  how 
often  parliament  has  met.  We  remember  that  under 
Edward  IV  and  Henry  VII  parliaments  have  been  becoming 
far  less  frequent  than  they  were  in  the  fourteenth  and  the 
first  half  of  the  fifteenth  century.  We  remember  also  that 
there  are  statutes  of  Edward  III  yet  unrepealed  which  seem 
plainly  to  mean  that  a  parliament  ought  to  be  summoned  at 
least  once  in  every  year. 

Henry  VIII  in  his  thirty-eight  years  held  nine  parliaments. 
One  of  these,  however,  endured  for  nearly  seven  years — this 

1  The  question  was  again  raised  in  the  Bucks.   Election  case  (Goodwin  v. 
Fortescue  1604).     Gardiner,  History  of  England^  vol.  I,  pp.    167—70. 


[          Seat  and  Theory  of  Sovereignty    255 

ne  Commonwealth  of  England  and  the  manner  of  govern- 
nt   thereof* — a  book  published   in    1589  by  Sir  Thomas 
ith  who  was  Secretary  of  State  to  Queen  Elizabeth :  '  The 
st  high   and   absolute   power   of  the   realm   of  England 
sisteth  in  the  parliament... That  which  is  done  by  this 
;ent  is  called  firm,  stable  and  sanctum,  and  is  taken  for 
The   parliament   abrogateth   old    laws,    maketh    new, 
th  orders  for  things  past  and  for  things  hereafter  to  be 
wed,  changeth   rights   and   possessions  of  private  men, 
imateth  bastards,  establisheth  forms  of  religion,  altereth 
hts  and  measures,  giveth  forms  of  succession  to  the  crown, 
ieth  of  doubtful  rights,  whereof  is  no  law  already  made, 
•inteth  subsidies,  tailes,  taxes,  and  impositions,  giveth  most 
pardons  and  absolutions,  restoreth  in  blood  and  name 
highest  court,  condemneth  or  absolveth  them  whom 
nce  will  put  to  that  trial.     And  tQ  be  short,  all  that 
,    the   people   of  Rome   might   do    either   in    centuriatis 
wiiliis  or  tributis,  the  same  may  be  done  by  the  parliament 
England  which  rcpresenteth  and  hath  the  power  of  the 
hole  realm,  both  the  head  and  body.     For  every  English- 
an  is  intended  to  be  there  present,  either  in  person  or  by 
•ocuration  and  attorneys,  of  what  preeminence,  state,  dignity 
quality  soever  he  be,  from  the  prince,  be  he  king  or  queen, 
the  lowest  person  of  England.     And  the  consent  of  the 
rliament  is  taken  to  be  every  man's  consent1/     That  is  a 
ry  memorable  passage  ;  the  following  century,  we  may  say, 
was  one  long  struggle  as  to  where  sovereignty  should  be, 
sliDuld  it  be  in  king  and  parliament  or  in  king  alone.     There 
can  be  little  doubt,  I  think,  which  party  had  history  on  its 
side,  not  merely  remote  history,  but  the  history  of  the  recent 
Tudor  reigns  ;  the  absolute  supremacy  of  the  statute-making 
body,  of  king  and  parliament,  had  been  both  admitted  in  fact 
and  acknowledged  in  theory. 

Still  it  must  candidly  be  admitted  that  the  extent  of  the 
royal  power  was  in  many  directions  very  ill  defined.  Before 
speaking  of  tliis  it  is  necessary  to  refer  to  the  council.  The 
Tudor  reigns  are,  we  may  say,  the  golden  age  of  the  council : 

1  Smith,  De  Republica  Anglomm%  ed.  L.  Alston  (with  a  preface  by  F,  W. 
Cambridge,  1906,  Bk.  II,  c.  i. 


256  Constitutional  History  PERT 

the  council  exercises  enormous  powers  of  the  most  vark 
kinds;  but  it  is  not  an  independent  body — as  against  the  k 
it  has  little  power  or  none  at  all,  and  when  in  the  case 
Edward  VI  the  king  is   a   boy,  then   the  council   raises 
above  itself  a  Lord  Protector,  who  acts  pretty  much  as  a  1 
de  facto.     In  1553  the  council  consists  of  forty  members  ;  t 
are  but  four  bishops  and  fourteen  temporal  peers;  the  res 
commoners,  among  whom  are  the  two  king's  secretaries, 
before  the  end  of  our  period  have  gained  the  title  c  the  k 
secretaries  of  state/     The  large  number  of  the  commc 
marks  a  great  change ;    the  government  of  the  realm 
slipped  out  of  the  hands  of  the  nobles.     In  1536  it  is  m 
of  complaint  that  the  councillors  are  of  humble  birth, 
king  chooses  capable  commoners  who  will  serve  him 
and  who  will  noc  be  independent.     Again,  the  ecclesias 
members  of  the  co^nqil  have  lost  their  independence;  if 
represent  the  church/still  it  is  a  church  of  which  the  kiii£ 
head.     On  the  whole,  the  council  seems  to  be  just  what  a 
king  would  wish  it  to  be,  and  he  consults  it  or  not,  as  pleas 
him  best;  many  important  negotiations  Henry  does  not  brii 
before  his  council  at  all.     But  to  the  king  a  council  of  ab 
servants  is  a  source  of  strength. 

We  must  now  look  at  the  powers  wielded  by  the  kii 
with  the  assistance  of  his  council.  We  will  bring  the  subje 
under  four  heads — (i)  legislation,  (2)  taxation,  (3)  judicatu 
(4)  administration. 

(i)  It  certainly  seepis  to  have  been  the  common  opinon 
that  the  king  had  a  certain  ordaining  power.  Regard  beng 
had  to  the  past  it  was  difficult  to  deny  this ;  but  what  v'^re 
its  limits?  Henry  VIII,  we  have  seen,  obtained  from  par^a~ 
ment  a  statute  giving  to  his  proclamations  issued  with  the 
consent  of  the  majority  of  his  council  the  force  of  statute 
law1.  But  then  this  act  was  repealed.  Elizabeth,  we  find, 
freely  issues  proclamations :  thus  anabaptists  are  bached 
from  the  realm,  Irishmen  are  commanded  to  depart  into 
Ireland,  the  exportation  of  corn,  money,  ana  various  com- 
modities is  prohibited.  A  proclamation  in  1580  forbids  the 
erection  of  houses  within  three  miles  of  London  under  pain 
of  imprisonment  The  council  frequently  issued  proclama- 

1  See  p.  253. 


1 1 1  Proclamations  257 

tions  to  restrain  the  importation  of  books,  and  to  regulate 
their  sale — thus  a  censorship  of  the  press  was  established. 
James  I  followed  the  example  of  his  predecessor — in  particular 
he  issued  frequent  proclamations  to  forbid  the  increase  of 
London.  In  1610  the  commons  protested — 'it  is  the  indubit- 
able right  of  the  people  of  this  kingdom  not  to  be  made 
subject  to  any  punishment  that  shall  extend  to  their  lives,, 
lands,  bodies  or  goods,  other  than  such  as  are  ordained  by 
the  common  laws  of  this  land,  or  the  statutes  made  by  their 
common  consent  in  parliament.  Nevertheless  it  is  apparent 
both  that  proclamations  have  been  of  late  years  much  more 
frequent  than  heretofore,  and  that  they  are  extended  not  only 
to  the  liberty,  but  also  to  the  goods,  inheritances  aad  liveli- 
hood of  men,  some  of  them  tending  to  alter  some  parts  of 
the  law  and  to  make  a  new;  other  appointing  punishments  to 
be  inflicted  before  lawful  trial  and  conation/  and  so  forth. 
'By  reason  whereof  there  is  a  general  Tear  conceived  and 
spread  among  your  majesty's  people,  that  proclamations'will, 
by  degrees,  grow  up  and  increase  to  the  strength  and  nature 
of  laws1/  To  all  this,  and  there  is  more  of  it,  the  only  answer 
is  that  the  proclamations  shall  go  no  further  than  is  warranted 
by  law. 

Before  this  answer  was  given  the  great  oracle  of  the  law 
had  been  consulted.  Coke,  then  Chief  Justice  of  the  Common 
Pleas,  was  summoned  to  the  council,  and  the  question  was  put 
to  him,  whether  the  king  by  proclamation  might  prohibit  the 
erection  of  new  buildings  in  London  ai\id  the  making  of  starch 
from  wheat.  He  was  pressed  to  answer  in  the  affirmative. 
He  refused  to  answer  without  consulting  his  brethren.  He 
consulted  with  three  judges,  and  they  answered  that  the  king 
cannot  by  his  prerogative  create  any  offence  which  was  not 
one  before,  but  the  king  may  by  proclamation  admonish  all 
his  subjects  that  they  keep  the  laws  and  do  not  offend  them 
upon  punishment  to  be  inflicted  by  the  law — neglect  of  a 
proclamation  aggravates  the  oftence ;  lastly,  if  an  offence  be 
not  punishable  in  the  Star  Chamber,  the  prohibition  of  it  by 
proclamation  cannot  make  it  so.  This  probably  was  sound 
law — that  is  to  say,  there  was  a  distinct  precedent  for  it 

1   Sowers'   Tracts,  vol.  II,  p.   162.     The  protest  is  also  printed  by  Hallam, 
Constitutional  History,  vol.  i,  pp.  327 — 8. 

M.  17 


258  Constitutional  History  PERIOD 

coming  from  the  middle  of  the  Tudor  period.  In  Mary's 
reign  the  judges  had  delivered  this  opinion :  '  The  king,  it  is 
said,  may  make  a  proclamation  quoad  terrorem  populi,  to  put 
them  in  fear  of  his  displeasure,  but  not  to  impose  any  fine, 
forfeiture,  or  imprisonment :  for  no  proclamation  can  make  a 
new  law,  but  only  confirm  and  ratify  an  ancient  one/  But 
though  James  I  had  the  opinion  of  his  judges  against  him, 
still  he  went  on  issuing  proclamations.  It  is  difficult  for  us  to 
realize  the  state  of  things — that  of  the  government  constantly 
doing  what  the  judges  consider  unlawful.  The  key  is  the 
Court  of  Star  Chamber — the  very  council  which  has  issued 
these  proclamations  enforces  them  as  a  legal  tribunal,  and  as 
yet  no  one  dares  resist  its  judicial  power. 

(2)  But  of  course  it  is  one  thing  to  say  that  the  king  has 
no  general  legislative  power  and  another  thing  to  say  that 
there  are  no  matters  -/bout  which  he  can  make  valid  ordinances : 
thus  it  may  be  in  his  power  to  regulate  the  importation  and 
exportation  of  goods.  We  are  thus  led  to  speak  of  the 
taxing  power.  The  highroad  of  direct  taxation  had  long 
been  barred  to  the  king  by  very  distinct  statutes ;  the  case  of 
customs  duties  was  almost  equally  clear.  It  is  said,  and  I 
believe  with  truth,  that  between  the  accession  of  the  House 
of  Lancaster  and  the  reign  of  Mary  there  is  no  precedent  for 
any  duty  imposed  by  the  king.  Edward  IV  had  recourse  to 
benevolences,  Henry  VII  and  Henry  VIII  to  forced  loans — 
but  they  did  not  attempt  to  impose  taxes  on  merchandise1 
However  in  1557  Mary  set  a  duty  on  cloths  exported  beyond 
seas,  and  afterwards  a  duty  on  the  importation  of  French 
wines.  It  seems  probable  that  at  the  beginning  of  Elizabeth's 
reign  the  opinion  of  the  judges  was  taken  by  the  council  as 
to  the  legality  of  these  impositions,  and  that  their  opinion 
was  not  favourable.  The  queen  however  did  not  abandon 
the  impost,  and  she  herself  set  an  impost  on  sweet  wines. 
James  imposed  a  duty  on  currants  over  and  above  the  tax 
which  was  set  on  them  by  the  statute  of  tonnage  and  poundage. 
Bate  refused  to  pay.  The  Court  of  Exchequer  decided  in 
the  king's  favour.  It  is  difficult  to  understand  the  judgment 
as  an  exposition  of  law ;  rather,  I  think,  we  must  say  that  the 

1  Henry  VIII  was  given  power  in  1534  (*6  Hen.  VIII,  c.  x)  during  his  *  life  natural' 
to  repeal  or  revive  acts  relating  to  the  importation  and  exportation  of  merchandise. 


in  Impositions  259, 

king  succeeded  in  obtaining  from  the  barons  of  the  Exchequer 
a  declaration  that  there  is  a  large  sphere  within  which  there 
is  no  law  except  the  king's  will.  'The  matter  in  question  is 
material  matter  of  state,  and  ought  to  be  ruled  by  the  rules  of 
policy;  and  if  so,  the  king  has  done  well  to  execute  his  extra- 
ordinary power.  All  customs,  old  or  new,  are  effects  of 
commerce  with  foreign  nations;  but  commerce  and  affairs 
with  foreigners,  war  and  peace,  the  admitting  of  foreign  coin, 
all  treaties  whatsoever,  are  made  by  the  absolute  power  of  the 
king.  The  king  may  shut  the  ports  altogether ;  therefore  he 
may  take  toll  at  the  ports.'  This  seems  the  main  thought  of 
the  judgment.  It  seems  that  the  opinion  of  the  two  Chief 
Justices,  Popham  and  Coke,  was  taken,  though  the  case  did 
not  come  before  them  judicially.  They  would  not  go  nearly  so 
far  as  the  barons  of  the  Exchequer.  Thg^  said  that  the  king 
cannot  set  impositions  upon  imported  goods  at  his  pleasure, 
but  that  he  may  do  so  for  the  good  of  the  people — thus  if 
foreign  princes  set  taxes  on  English  goods  the  king  may 
retaliate.  Their  doctrine  seems  to  have  been  that  the  king 
may  not  set  impositions  merely  for  the  sake  of  revenue,  but 
that  he  may  do  so  for  other  ends,  as  for  the  protection  of 
English  merchants  :  obviously  this  is  an  unstable  doctrine. 

The  House  of  Commons  in  1610  took  up  the  matter.  The 
lawyers  in  that  house,  in  particular  Hakewill,  very  learnedly 
disputed  the  judgment  of  the  Exchequer,  relying  on  the 
statutes  of  the  fourteenth  century,  and  on  the  cessation  of  any 
attempts  to  tax  merchandise  without  parliamentary  authority 
from  the  reign  of  Richard  II  to  the  reign  of  Mary.  They 
carried  a  bill  enacting  that  no  imposition  should  be  set 
without  the  consent  of  parliament,  but  the  lords  rejected  it. 
The  immediate  consequence  had  been  that  in  1608  the  king, 
having  the  judgment  in  Bate's  case  at  his  back,  issued  a  book 
of  rates  imposing  heavy  duties  upon  almost  evefy  article  of 
merchandise.  The  subject  was  resumed  in  the  short  parlia- 
ment of  1614;  the  commons  passed  a  unanimous  vote  denying 
the  king's  right  of  imposition.  They  refused  to  grant  any 
subsidy  until  this  grievance  should  be  redressed.  James 
dissolved  the  parliament1. 

1  See  Prothero,  Statutes  and  Constitutional  Documents  (1559 — 1625),  pp.  340 — 53. 

17 — 2 


260  Constitutional  History  PERIOD 

A  more  serious  step  was  now  necessary  if  money  was  to 
be  obtained.  The  king  had  recourse  to  benevolences.  Letters 
were  written  to  the  sheriffs  directing  them  to  call  upon 
persons  of  ability  for  contributions.  The  unrepealed  statute 
of  Richard  III  against  'exactions  called  benevolences'  stood 
in  the  way.  Still  it  was  difficult  to  argue  that  the  king  may 
not  accept  a  perfectly  voluntary  gift  of  money.  To  the  end 
of  the  reign  the  impositions  are  exacted,  though  the  commons 
from  time  to  time  protest  against  them. 

The  legal  ground  that  they  occupied  was  certainly  strong, 
but  we  must  not  exaggerate  its  strength.  They  were  obliged 
to  concede  the  existence  of  prerogatives  which,  at  least  in  our 
eyes,  amount  to  a  prerogative  of  extorting  money.  For 
instance,  HakewiU  in  his  famous  argument  over  Bate's  case 
admits  that  the  king  can  debase  the  coinage,  and  as  a  matter 
of  fact  the  kings  vj^e  done  this  over  and  over  again.  The 
king's  power  over  the  coinage  was  certainly  very  great 
Sir  Matthew  Hale,  writing  after  the  Restoration,  is  still  of 
opinion  that  the  king  may  debase  the  coinage.  It  is  legal, 
though  dishonourable.  Even  Blackstone  is  not  certain  that 
it  is  illegal1.  This  is  one  instance  of  the  admitted  powers  of 
the  king,  powers  whereby  he  could  increase  his  revenue. 
Another  instance,  and  one  which  becomes  of  importance  in 
James's  reign,  is  afforded  by  monopolies. 

From  the  Conquest  onwards  the  kings  had  exercised  the 
right  of  granting  and  selling  many  valuable  privileges — to 
name  but  one,  though  an  important  matter, — it  was  to  charters 
purchased  from  the  kings  that  the  towns  owed  their  privileges. 
Not  unfrequently  such  privileges  included  privileges  of  trading 
— the  right  to  hold  a  fair  or  a«market  could  be  granted  by 
the  king.  So  could  the  right  to  take  toll  for  merchandise 
passing  through  the  town.  Such  grants  were  common,  and 
do  not  seem  to  have  been  in  the  least  unpopular ;  it  was  the 
object  of  every  town  to  obtain  as  comprehensive  a  grant  as 
possible.  Under  the  Tudors  the  practice  of  granting  rights 
of  exclusive  trading  assumed  enormous  proportions  :  letters 
patent  giving  the  patentee  the  exclusive  right  of  selling  became 
common,  and  some  very  necessary  articles  such  as  salt,  leather, 

1  Hale,  Pleas  of  the  Craivn,  vol.  I,  p.  194.     Blackstone,  Commentaries ,  vol.  I,  c.  7. 


1 1 1  Monopolies  26 1 

and  coal  had  been  made  the  subject  of  monopolies.  In  1597 
the  commons  begin  to  protest ;  these  monopolies  have  become 
a  grievous  burden.  In  1601  a  bolder  attack  is  made,  and 
Elizabeth  was  induced  to  promise  that  the  existing  patents 
should  be  repealed  and  no  more  issued.  The  commons  how- 
ever do  not  seem  to  have  been  prepared  to  assert  that  all 
monopolies  were  illegal,  or  to  separate  those  which  were 
illegal  from  those  which  were  not.  James,  disregarding 
Elizabeth's  promise,  made  a  copious  use  of  monopolies  for 
the  purpose  of  obtaining  a  revenue.  The  commons  grew 
bolder,  asserted  the  illegality  of  all  monopolies,  and  in  the  last 
parliament  of  the  reign  a  declaratory  act  was  passed — an  act 
declaring  not  merely  that  grants  of  monopoly  were  to  be  illegal 
in  the  future,  but  also  that  they  had  been  illegal  in  the  past1. 
This  is  the  greatest  victory  of  the  commons  during  the  reign 
of  James.  An  exception  was  made  in  %vrour  of  letters  patent 
granting  the  exclusive  right  of  using  for  a  term  of  fourteen 
years  any  new  manufacture  to  the  first  and  true  inventor  thereof. 
Our  modern  patent  law  is  the  outcome  of  this  exception^ 

(3)  It  is  by  means  of  the  judicial  power  of  the  Court  of 
Star  Chamber  that  the  king  enforces  his  proclamations.  We 
have  already  said  something  of  this  court'2.  Let  us  remember 
that  a  statute  of  1487  (3  Hen.  VII,  c.  i)  gave  authority  to 
certain  persons  to  punish  certain  crimes.  These  persons  are 
the  chancellor  and  treasurer  of  England  and  the  keeper  of  the 
privy  seal,  or  two  of  them,  calling  to  them  a  bishop  and  a 
temporal  lord  of  the  king's  council  and  the  two  chief  justices, 
or  in  their  absence  two  other  justices.  The  offences  that  they 
are  to  punish  are  riots,  unlawful  assemblies,  bribery  of  jurors, 
misdoing  of  sheriffs,  and  some  others  which  we  may  describe 
as  interferences  with  the  due  course  of  justice.  It  is  evidently 
contemplated  by  the  statute  that  the  accused  persons  will  not 
be  tried  by  jury.  The  statute  does  not  mention  the  Star 
Chamber,  but  that  is  a  room  which  the  council  has  long  used. 

Now  a  difficulty  meets  us :  long  before  the  end  of  our 
period  there  exists  what  is  known  as  the  Court  of  Star 
Chamber.  This  however  does  not  exactly  correspond  to  the 

1  21  James  I,  c.  3.    The  Act  did  not  apply  to  monopolies.    Gardiner,  history 
of  England,  vol.  V,  p.  -233,  vol.  vm,  pp.  71—5. 

2  See  pp.  218 — 21. 


262  Constitutional  History  PERIOD 

court  described  by  the  statute  of  1487 — and  that  in  two 
respects,  (a)  All  the  members  of  the  council  seem  to  have 
been  members  of  it.  James  himself,  at  least  upon  some 
occasions,  sat  there  in  person  and  himself  passed  ^sentence. 
As  many  as  twenty-five  councillors  are  sometimes  found  sitting 
there.  It  had  a  great  deal  of  work  to  do,  and  in  term  time 
sat  three  days  a  week.  This  brings  us  to  the  second  point 
(6)  It  did  not  confine  itself  to  dealing  with  the  crimes 
specified  in  the  statute  of  1487.  Its  jurisdiction  over  crime 
was  practically  unlimited,  or  limited  only  by  this — that  it  did 
not  pass  sentence  of  death.  We  know  it  best  as  dealing  with 
what  may  be  called  political  crimes — sedition  and  the  like ; 
but  it  dealt  also  with  commoner  offences — robbery,  theft,  and 
so  forth.  It  dealt  with  some  misdoings  for  which  the  common 
law  had  as  yet  no  punishment,  in  particular  with  libels. 

Now  was  this  thetx^urt  created  by  the  statute  of  Henry  VII  ? 
Under  Charles  I  (for  ^ye  must  anticipate  this  much)  the  opinion 
had  gained  ground  that  it  ^vasy  that  consequently  whatever  it 
did  beyond  the  sphere  marked  out  by  that  statute  was  an 
unlawful  usurpation  of  jurisdiction.  When  the  time  for 
abolishing  it  had  come,  it  was  abolished  on  this  score.  But 
the  general  opinion  seems  now  to  be  that  the  jurisdiction  of 
this  Court  of  Star  Chamber  was  in  truth  the  jurisdiction  which 
the  king's  council  had  exercised  from  a  remote  time,  despite 
all  protests  and  all  statutes  made  against  it.  The  act  of  1487 
constituted  a  committee  of  the  council  to  deal  with  certain 
crimes;  this  however  did  not  deprive  the  council  itself  of  any 
jurisdiction  that  'it  had.  This  committee  seems  to  have  been 
in  existence  as  late  as  1529,  for  a  statute  of  that  year 
(21  Hen.  VIII,  c.  20)  adds  to  the  committee  the  lord  president 
of  the  council,  an  officer  recently  created  ;  but  before  the  end 
of  Henry  VI IPs  reign  this  statutory  committee  seems  to  dis- 
appear, it  is  merged  in  the  general  body  of  the  council. 

There  can,  I  think,  be  no  doubt  that  under  Elizabeth  and 
James  this  court  was  regarded  as  perfectly  legal — though 
there  may  have  been  doubts  as  to  how  it  came  to  be  legal, 
and  it  is  said  that  Plowden,  the  great  lawyer,  asserted  that  it 
derived  all  its  lawful  authority  from  the  statute  of  Henry  VII. 
Coke  speaks  of  it  with  great  respect,  and  does  not  seem  to 


Ill  The  Star  Chamber  263 

share  Plowden's  doubts :  *  It  is  the  most  honourable  court 
(our  parliament  excepted)  that  is  in  the  Christian  world1.1 
A  statute  of  1562  (5  Elizabeth  c.  9)  enumerates  the  King's 
Court  of  Star  Chamber  along  with  the  Chancery  as  one  of  the 
known  courts  of  the  realm.  The  Chancery  had  by  this  time 
become  a  fully  recognized  court  of  justice,  administering  a 
mass  of  rules  known  as  equity,  and  yet  the  origin  of  its 
jurisdiction  was  as  obscure  as  that  of  the  jurisdiction  of  the 
council  in  the  Star  Chamber :  if  there  were  ancient  statutes 
against  the  one  there  were  ancient  statutes  against  the  other 
also.  There  can,  I  think,  be- little  doubt  that  the  Star  Chamber 
was  useful  and  was  felt  to  be  useful.  The  criminal  procedure 
of  the  ordinary  courts  was  extremely  rude ;  the  Star  Chamber 
examining  the  accused,  and  making  no  use  of  the  jury, 
probably  succeeded  in  punishing  many  crimes  which  would 
otherwise  have  gone  unpunished.  But  t'Jiat  it  was  a  tyrannical 
court,  that  it  became  more  and  more  tyrannical,  and  under 
Charles  I  was  guilty  of  great  infamies  is  still  more  indubitable. 
It  was  a  court  of  politicians  enforcing  a  policy,  not  a  court  of 
judges  administering  the  law.  It  was  cruel  in  its  punishments, 
and  often  had  recourse  to  torture.  It  punished  jurors  for  what 
it  considered  perverse  verdicts;  thus  it  controlled  all  the 
justice  of  the  kingdom.  The  old  process  of  attaint,  of  which 
we  have  before  spoken,  had  long  gone  out  of  use,  but  in  the 
Star  Chamber  the  jurors  had  to  fear  a  terrible  tribunal  which 
would  resent  a  verdict  against  the  king. 

Other  courts  of  a  similar  kind  closely  connected  with  the 
council  had  come  into  existence  in  divers  parts  of  England. 
The  Council  of  the  North  was  erected  by  Henry  VIII  after 
the  Catholic  revolt  of  1536  without  any  act  of  parliament2.  It 
had  a  criminal  jurisdiction  in  Yorkshire  and  the  four  more 
northern  counties  as  to  riots,  conspiracies  and  acts  of  violence. 
It  was  also  given  a  civil  jurisdiction  of  an  equitable  kind,  but 
in  Elizabeth's  reign  the  judges  of  the  common  law  courts 
pronounced  this  illegal.  Their  doctrine  seems  to  have  been 
that  without  act  of  parliament  the  king  might  create  a  new 

1  Institutes i    Part   IV,   cap.   5.      See   Prothero,   Statutes  and  Constitutional 
Documents  (1559 — 1625),  pp.  401 — 3. 

2  See  Lapsley,  *  The  Problem  of  the  North '  in  American  Historical  Review, 
vol.  v,  pp.  440 — 66  (1900). 


264  Constitutional  History  PERIOD 

court  to  deal  with  matters  known  to  the  common  law,  but 
that  he  could  not  create  a  new  court  of  equity.  But  its 
criminal  jurisdiction  the  Council  of  the  North  maintained, 
and  this  it  seems  to  have  exercised  according  to  the  course  of 
the  Star  Chamber. 

The  Court  of  the  Council  of  Wales  seems  to  have  arisen 
under  Edward  IV,  but  its  authority  was  acknowledged  and 
confirmed  by  a  statute  of  1542  (34  Hen.  VIII,  c.  26).  It 
was  to  have  authority  in  Wales  and  the  Welsh  marches1. 
Under  this  latter  denomination  it  seems  to  have  considered 
that  the  four  counties  of  Gloucester,  Worcester,  Hereford,  and 
Salop,  were  included.  We  hear  of  protests  against  this  exten- 
sion under  James  I,  and  according  to  Coke  the  twelve  judges 
held  that  these  four  counties  were  not  within  the  scope  of  the 
council's  power.  However,  the  opinions  of  the  judges  were  in 
vain :  the  question  \Vhat  was  meant  by  the  marches  of  Wales 
was  a  difficult  question.  In  considering  the  position  of  these 
courts  it  is  desirable  to  remember  that  the  old  local  courts 
had  become  very  useless  as  judicial  tribunals;  they  could  only 
entertain  personal  actions  in  which  no  more  than  forty  shillings 
was  claimed,  and  forty  shillings  had  become  a  small  sum.  That 
concentration  of  justice  in  the  Westminster  courts  of  which 
we  have  so  often  spoken  was  producing  evil  effects — it  made 
litigation  about  small  matters  very  slow  and  very  costly  ;  in 
many  instances  it  must  have  amounted  to  a  denial  of  justice. 
So  there  was  room  enough  for  new  local  courts.  Men  in 
general  seem  to  have  been  very  willing  that  these  new  local 
courts  should  exist,  and  the  opposition  of  the  common 
lawyers  was  to  a  large  extent  a  selfish  professional  opposition, 
though  it  served  in  course  of  time  to  maintain  the  authority 
of  parliament  against  stretches  of  the  prerogative. 

There  was,  however,  one  new  court  of  great  importance, 
whose  powers  they  were  inclined  rather  to  magnify  than  to 
minimize — this  was  the  Court  of  High  Commission*.  Time 
does  not  permit  us  to  investigate  the  great  religious  changes  of 
our  period  ;  but,  of  course,  the  Reformation  has  an  important 

1  For  further  information  see  Miss  C.  A.  S.  Skeel,  The  Council  in  the  Marches 
of  Wales  (London,  1904). 

2  For  the  High  Commission  Court  see  Prothero,  Statutes  and  Constitutional 
Documents i  Intr. 


ill         The  Court  of  High  Commission      265 

legal  side,  it  is  effected  by  acts  of  parliament.  The  measures 
of  Henry  VIII  and  those  of  Edward  VI  placed  the  church 
under  the  headship  of  the  king,  he  was  recognized  as  head 
of  the  church.  These  measures  were  repealed  by  Mary.  Most, 
but  not  all  of  them,  were  revived  by  the  Act  of  Supremacy 
(i  Eliz.  i);  she  did  not  revive  the  act  which  asserted  the 
king's  headship  of  the  church1.  The  ecclesiastical  courts 
continued  to  exercise  their  jurisdiction,  but  above  them  was 
raised  a  court  of  royal  commissioners.  The  Act  of  Supremacy 
empowers  the  queen  to  appoint  any  number  of  persons,  being 
natural  born  subjects,  to  exercise  under  Her  Majesty  all 
manner  of  jurisdiction  in  anywise  touching  ecclesiastical 
matters.  The  words  of  the  act  (sec.  18)  are  extremely  large, 
and  the  commissions  issued  under  it  became  wider  and  wider. 
In  1583  the  power  of  the  commissioners  has  become  very 
ample — there  were  forty-four  commissioners,  most  of  them 
laymen.  In  many  matters  affecting  religion  they  had  a  dis- 
cretionary pow£r  of  fine  and  imprisonment ;  these  powers 
could  be  exercised  by  any  three  members  of  the  body,  one  of 
them  being  a  bishop.  Now  this  court  had  a  distinctly  statutory 
origin  ;  there  could  be  no  ground  whatever  for  questioning  its 
legality.  But  in  this  instance  the  common  lawyers  were  on 
the  side  of  the  crown ;  if  they  disliked  the  prerogative  when 
it  interfered  with  the  course  of  the  common  law,  they  magnified 
it  when  exercised  about  ecclesiastical  matters  ;  they  were  glad 
enough  to  see  their  old  rival,  the  spiritual  jurisdiction,  the 
humbled  servant  of  the  temporal  power ;  they  held  that  so 
absolute  was  the  royal  supremacy  over  all  religious  affairs, 
that  even  the  ample  words  of  the  Act  of  Supremacy  did  not 
express  its  full  extent ;  the  high  commissioners  might  do 
things  that  were  not  expressly  authorized  by  the  statute  book. 
A  little  later,  the  lawyers,  or  at  least  some  of  them,  turned 
round.  Coke  held  that  the  act  of  Elizabeth  did  not  give  the 
commissioners  power  to  fine  or  imprison  the  laity — the  sole 
weapons  that  it  could  use  were  the  old  ecclesiastical  weapons 
of  censure,  penance,  excommunication.  However,  this  power 
was  de  facto  maintained,  and  was  largely  and  oppressively 

1  For  Elizabeth's   title   see   Maitland,  Defender  of  the  Faith,  and  so  forth, 
English  Historical  Review,  Jan.   1900. 


266  Constitutional  History  PERIOD 

used  under  Charles  I.  To  whatever  quarter  we  look  we  see 
that  he  inherited  a  great  number  of  difficulties  in  church 
and  state — lawyers  and  parliaments  were  beginning  to  call  in 
question  the  legality  of  the  institutions  whereby  the  Tudors 
had  governed  the  country. 

Again  commissions  had  been  exercised  for  the  trial  of 
offenders  by  martial  law.  In  tracing  their  history  we  have  to 
notice  a  verbal  confusion.  From  a  very  early  time  the  king's 
constable  and  marshall  were  the  leaders  of  the  king's  army. 
These  offices  became  hereditary  and  of  no  very  great  impor- 
tance. However,  as  late  as  Edward  I,  it  is  the  fact  that  Bohun 
and  Bigod  are  the  constable  and  marshall,  which  enables  them 
to*  paralyze  the  king,  by  refusing  to  lead  the  army  to  France. 
The  marshall's  office  is  still  in  existence  ;  the  Duke  of  Norfolk 
is  Earl  Marshall  of  Bhgland.  The  constable's  office  fell  into 
the  royal  family  on  $ie  accession  of  the  House  of  Lancaster 
— occasional  grants*  of  the  office  were  made;  but  after 
Henry  VI Ts  time,  th6  office  seems  only  to  Ii^ve  been  granted 
for  special  occasions.  Now  as  leaders  of  the  army  the  constable 
and  marshall  seem  to  have  had  jurisdiction  over  offences 
committed  in  the  army,  especially  when  the  army  was  in 
foreign  parts,  and  in  the  fourteenth  century  we  hear  complaints 
of  their  attempting  to  enlarge  their  jurisdiction.  Now  as  a 
matter  of  etymology,  marshall 'has  nothing  whatever  to  do  with 
martial — the  marshall  is  the  master  of  the  horse — he  is 
marescallus,  mareschalk,  a  stable  servant — while  of  course 
martial  has  to  do  with  Mars,  the  god  of  war.  Still,  when 
first  we  hear  of  martial  law  in  England,  it  is  spelt  indifferently 
marshall  and  martial^  and  it  is  quite  clear  that  the  two  words 
were  confused  in  the  popular  mind — the  law  administered  by 
the  constable  and  marshall  was  martial  law.  Towards  the  end 
of  the  Wars  of  the  Roses  we  find  very  terrible  powers  of 
summary  justice  granted  to  the  constable.  In  1462  Edward  IV 
empowers  him  to  proceed  in  all  cases  of  treason,  'summarily 
and  plainly,  without  noise  and  show  of  judgment  on  simple 
inspection  of  fact.'  A  similar  patent  was  granted  to  Lord 
Rivers  in  1467.  They  show  something  very  like  a  contempt 
for  law— the  constable  is  to  exercise  powers  of  almost  un- 
limited extent,  all  statutes,  ordinances,  acts  and  restrictions  to 


ill  Martial  Law  267 

the  contrary  notwithstanding.  This  illegal  tribunal,  for  such 
we  may  well  call  it,  came  to  an  end  after  the  accession  of  the 
House  of  Tudor — the  king  had  no  need  of  it ;  but  an  evil 
precedent  had  been  set.  Mary  seems  to  have  executed  some 
of  those  taken  in  Wyatt's  insurrection  without  regular  trial. 
In  1588,  when  the  Armada  was  approaching,  Elizabeth  issued 
a  proclamation  declaring  that  those  who  bring  in  traitorous 
libels  or  papal  bulls  against  the  queen,  are  to  be  proceeded 
against  by  martial  law.  In  1595  there  had  been  riots  in 
London ;  the  queen  granted  a  commission  for  trying  and 
executing  the  rebels  according  to  the  justice  of  martial  law. 
There  seems  to  be  another  precedent  for  such  a  commission 
in  J569,  after  the  insurrection  of  the  northern  earls,  when  six 
hundred  persons  were,  it  is  said,executed  by  the  Earl  of  Sussex. 
Jameson  several  occasions  issued  such  commissions:  in  1617, 
1620,  1624 ;  they  empower  the  commissioners  to  try  men  by  the 
law  called  the  law  martial — even  those  who  have  been  guilty 
of  ordinary  felonies.  There  can,  I  think,  be  no  doubt  that, 
according  to  the  opinion  of  the  lawyers  of  the  time,  such 
commissions  were  illegal.  The  government  may  put  down 
force  by  force — but  when  there  is  no  open  rebellion,  or  when 
the  rebellion  is  suppressed,  it  has  no  authority  to  direct  the 
trial  of  prisoners,  except  in  the  ordinary  courts  and  according 
to  the  known  law  of  the  land.  As  to  what  was  this  '  law  called 
martial  law '  we  know  little,  and  probably  there  is  little  to  be 
known  ;  it  meant  an  improvised  justice  executed  by  soldiers. 
It  may  seem  to  us  very  strange  that  there  should  have 
been  in  full  play  tribunals,  the  legality  of  which  was  very 
questionable,  and  other  tribunals,  the  illegality  of  which  could 
hardly  be  questioned.  Why,  we  may  ask,  was  not  the  question 
raised  in  some  court  of  common  law  ?  The  answer  seems  to 
lie,  at  least  partly,  in  the  fact  that  the  judges  of  the  courts  of 
common  law  were  very  distinctly  the  king's  servants.  It  rs 
needless  to  accuse  them  as  a  class  of  any  disgraceful  sub- 
serviency, though  some  of  them  were  disgracefully  subservient 
— but  past  history  had  made  their  position  difficult.  The  king 
was  the  fountain  of  all  justice  ;  they  were  but  his  deputies — 
this  was  the  old  theory,  and  to  break  with  it  was  impossible. 
To  hold,  not  that  some  isolated  act  of  royal  authority  was 


268  Constitutional  History  PERIOD 

illegal — but  that  the  government  of  the  country  was  being 
regularly  conducted  in  illegal  ways — this  would  have  been  a 
hard  feat  for  the  king's  servants  and  deputies.  The  position 
of  affairs  may  be  best  illustrated  by  some  episodes  in  the  career 
of  one  who  has  left  his  mark  deep  in  the  history  of  our  law. 

Edward  Coke  was  born  in  1552,  and  died  in  1634.     His 
books,   which   were   soon   treated    as   venerable   authorities, 
consist  of  the  Institutes  in  four  parts — the  first  the  celebrated 
commentary   on    Littleton's    Tenures  (1628),   the   second   a 
commentary  on  various  statutes  ranging  from  Magna  Carta 
to  James  I,  the  third  an  account  of  the   criminal  law,  the 
fourth   a  treatise   on   the   various   courts    (all    published   in 
1641  and   therefore   posthumous) — and    thirteen  volumes  of 
Reports  (the  first   eleyen,  1600-1615,  the   last  two  posthu- 
mous)— and  there  sire/some  minor  works.     Certainly  he  was 
a  very  learned  man/  he  knew   his  Year  Books  at  a  time 
when   such   knowledge  was  becoming   uncommon — and   by 
giving  the  results  of  his  learning  in  English  instead  of  debased 
French,  he  made  himself  for  ages  an  ultimate  authority  about 
all   matters  of  medieval    common    law:   we  are  but  slowly 
beginning  to  find  out  that  he  did  not  know  everything.     In 
1593  he  became  Solicitor-General,  in  1594  Attorney-General, 
in  1606  Chief  Justice  of  the  Common  Pleas.     We  soon  find 
him  in  opposition  to  the  king.     In  1605  Archbishop  Bancroft 
had  complained  of  the  interference  of  the  common  law  courts 
with  the  ecclesiastical  tribunals  ;  the  former  were  constantly 
issuing  in  the  king's  name  prohibitions  forbidding  the  courts 
Christian  from  entertaining  cases  which, as  the  common  lawyers 
maintained,   belonged    to    the    lay   courts.      The   king   was 
inclined  to  take  the  archbishop's  side :  he  sent  for  the  judges, 
told  them  that  they  were  his  delegates,  and  that  it  was  for 
him  to  decide  to  which  court  cases  should  go.     '  Then '  (this 
is  Coke's  account)  '  the  king  said  that  he  thought  the  law  was 
founded  upon  reason,  and  that  he  and  others  had  reason  as 
well  as  the  judges.     To  which  it  was  answered  by  me  that 
true   it  was   that  God  had  allowed   His  Majesty  excellent 
science  and  great  endowments  of  nature  ;  but  His  Majesty 
was  not  learned  in  the  laws  of  his  realm  of  England  and 
causes  which  concern  the  life  or  inheritance  or  goods  or 


HI  Edward  Coke  269 

fortunes  of  his  subjects ;  they  are  not  to  be  decided  by  natural 
reason,  but  by  the  artificial  reason  and  judgment  of  law, 
which  law  is  an  act  which  requires  long  study  and  experience 
before  that  a  man  can  attain  to  the  cognizance  of  it;  and  that 
the  law  was  the  golden  met-wand  and  measure  to  try  the 
causes  of  the  subjects,  and  which  protected  His  Majesty  in 
safety  and  peace.  With  which  the  king  was  greatly  offended, 
and  said  that  then  he  should  be  under  the  law,  which  was 
treason  to  affirm,  as  he  said.  To  which  I  said  that  Bracton 
saith  quod  Rex  non  debet  esse  sub  homine  set  sub  dec  et  lege^. 
We  see  these  old  words  of  Bracton  doing  service  again 
and  again.  The  judges  seem  even  to  have  told  the  king  that 
no  king  after  the  Conquest  had  ever  taken  on  himself  to  give 
judgment:  if  they  said  so,  they  said  what  was  certainly  untrue ; 
but  we  see  that  it  was  difficult  to  assure  James  I  that  he  was 
not  in  fact,  what  he  was  according  to  admitted  theory,  the 
highest  judge  in  his  realm. 

Coke's  next  exploit  is  in  161 1,  when  he  and  his  brethren  in 
the  Common  Pleas  held  that  the  Court  of  High  Commission 
had  no  power  to  fine  and  imprison.  The  question  turned  on 
the  meaning  of  the  section  in  the  Act  of  Supremacy,  to  which 
reference  has  already  been  made.  The  Common  Pleas  held 
that  the  Commission  which  authorized  the  infliction  of  fine 
and  imprisonment  was  not  itself  authorized  by  the  statute. 
The  judges  of  that  court,  and  those  of  the  other  two  courts, 
were  summoned  before  the  council  and  examined  seriatim. 
Coke  refused  to  give  way;  but  the  other  judges  were  not 
unanimous.  The  king  promised  that  a  less  objectionable  form 
of  commission  should  be  issued ;  and  a  new  commission  was 
issued  with  Coke's  name  in  it — but  he  refused  to  sit,  as  he 
was  not  allowed  to  see  the  commission. 

As  regards  the  impositions  of  customs  dues.  The  Court  of 
Exchequer  held  this  to  be  legal,  and  Coke  agreed  that  it  was 
legal  if  the  imposition  was  intended  for  the  good  of  the  public, 
and  not  merely  for  the  increase  of  the  revenue.  As  regards 
the  validity  of  proclamations  in  general,  he  and  the  rest  of  the 
judges  were  bolder ;  they  declared  that  a  proclamation  could 
not  create  a  new  offence — but  of  this  we  have  already  spoken. 

1  Coke,  Reports^  xu,  65.     Ci.  Gardiner,  History  of  England,  vol.  n,  pp.  36—9. 


270  Constitutional  History  PERIOD 

In  1613  Coke  was  made  Chief  Justice  of  the  King's  Bench, 
seemingly  in  the  hope  that  in  a  more  exalted  position  he  would 
prove  more  pliant.  But  the  hope  was  vain.  In  Peacham's  case 
he  objected  to  the  judges  being  asked  singly  and  apart  for 
their  opinions  as  to  a  matter  which  was  to  come  before  them 
judicially.  At  a  later  day,  when  he  was  no  longer  a  judge,  he 
objected  to  the  whole  practice  of  consulting  the  judges  about 
such  matters — but  at  this  time  he  merely  objected  to  their 
being  consulted  one  by  one :  as  solicitor  and  attorney-general 
he  had  often  himself  asked  the  judges  for  their  opinions. 
The  practice,  however  evil  it  may  seem  in  our  eyes,  was  an 
old,  well-established  practice,  and  it  was  even  possible  to 
contend  that  the  judges  were  bound  by  their  oaths  to  give  the 
king  legal  advice  whenever  he  asked  for  it 

Then  in  1615  Coke  plunged  into  a  controversy  with  the 
Court  of  Chancery,  in^which  he  was  decisively  worsted.  For 
some  time  past  the  Chancery  had  claimed  and  exercised  a 
power  of  ordering  a  person  who  had  been  successful  in  a  court 
of  law,  to  refrain  from  putting  in  force  the  judgment  that  he 
had  obtained,  on  the  ground  that  he  had  obtained  it  by  fraud 
or  other  inequitable  means.  You  will  understand  that  the 
Chancery  did  not  attempt  to  prohibit  the  courts  of  law  from 
entertaining  or  deciding  causes — it  claimed  no  supervisory 
jurisdiction  over  them,  such  as  the  Court  of  King's  Bench 
exercised  over  the  local  courts;  but  it  did  claim  that  if  a  person 
had  obtained  a  judgment  by  inequitable  means,  by  fraud  or 
breach  of  trust,  he  might  be  enjoined  from  putting  in  force,  from 
obtaining  execution.  Coke  rebelled  against  this — and  seems 
to  have  thought  that  anyone  who  went  to  the  Chancery  in 
such  a  case  was  guilty  of  the  offence  created  by  the  Acts  of 
Praemunire,  that  of  going  from  the  king's  courts  to  another 
tribunal — acts  which  had  been  directed  against  the  judicial 
power  of  the  bishop  of  Rome.  The  matter  was  referred  to  the 
king,  and  he  had  the  pleasure  of  deciding  in  favour  of  the 
Chancery,  and  thus  maintaining  his  theory  that  he  was  the 
supreme  arbiter  when  his  judges  differed.  The  victory  of  the 
Chancery  was  final  and  complete — and  if  we  were  to  have  a 
court  of  equity  at  all,  it  was  a  necessary  victory. 

Then  in  1616  came  the  case  of  the 


in  Coke's  Dismissal  271 

Neile  of  Lincoln  had  received  two  benefices  from  the  king  to 
be  held  in  commendam,  that  is  to  say,  together  with  his 
bishopric.  An  action  was  brought  against  him  by  two  men, 
Colt  and  Glover,  who  contested  the  legality  of  the  royal  grant, 
and  in  the  course  of  the  proceedings  it  was  reported  to  James 
that  the  counsel  for  the  plaintiffs  disputed  the  royal  right  to 
grant  a  commendam.  Coke  and  his  fellows  received  orders 
not  to  proceed  with  the  hearing  of  an  action  in  which  the 
king's  prerogative  was  questioned  ;  they  answered  that  they 
were  bound  by  their  oaths  not  to  regard  such  commands. 
The  king  sent  for  them,  and  they  humbled  themselves,  with 
the  exception  of  Coke — from  whom  no  more  could  be  got 
than  that  if  such  a  command  came  he  would  do  what  an 
honest  and  just  judge  ought  to  do. 

The  intractable  chief  justice  was  forthwith  dismissed.  '  It 
is  the  common  speech  (says  a  contemporary)  that  four  p's  have 
overthrown  him — that  is  pride,  prohibitions,  praemunire  and 
prerogative1/  In  1620  he  appears  in  parliament  as  a  leader  on 
the  popular  side,  and  from  that  time  until  his  death  in  1634,  did 
not  a  little  to  give  the  great  struggle  its  peculiar  character — 
a  struggle  of  the  common  law  against  the  king. 

On  several  occasions  during  that  struggle  an  important 
part  is  played  by  the  writ  of  habeas  corpus?  We  had  better 
therefore  see  what  that  writ  was,  and  we  shall  have  to  notice 
that  even  during  the  Tudor  time  there  was  considerable  doubt 
as  to  its  scope.  From  a  very  early  time  our  kings  had  claimed 
to  supervise  all  the  justice  of  their  realm.  If  anyone  was 
imprisoned  it  was  in  the  king's  power  to  inquire  the  cause  of 
the  imprisonment.  We  ought  to  carry  our  thoughts  back  to 
a  time  when  England  was  full  of  private  prisons — the  prisons 
of  lords  who  claimed  jurisdiction  by  royal  grant  or  by 
prescription.  At  the  suit  of  an  imprisoned  subject  the  king 
would  send  his  writ  to  the  keeper  of  the  gaol,  bidding  him 
have  the  body  of  that  subject  before  the  king's  court,  to 
undergo  and  receive  what  that  court  should  award.  As 
happened  in  many  other  cases,  this  prerogative  of  the  king 
came  to  be  regarded  as  the  right  of  the  subject  During  the 

1  Gardiner,  History  of  England^  vol.  Ill,  pp.  25—6. 


272  Constitutional  History  PERIOD 

later  Middle  Ages  a  writ  of  habeas  corpus  seems  to  have  been 
granted  in  the  royal  chancery  almost  or  quite  as  a  matter 
of  course;  there  were  clerks  very  willing  to  increase  their 
business,  and  there  were  judges  very  desirous  of  amplifying 
their  jurisdiction.  When  the  three  courts  of  common  law 
had  become  separate,  this  work  of  investigating  the  cause 
of  an  imprisonment  belonged  most  properly  to  the  King's 
Bench;  but  by  means  of  fictions  the  other  two  courts 
followed  its  example,  and  issued  and  adjudicated  upon  writs 
of  habeas  corpus. 

We  ought  further  to  know  some  little  as  to  the  imprison- 
ment of  persons  accused,  but  not  yet  convicted  of  crime.  Our 
early  law  seldom  kept  a  man  in  prison  before  trial  if  he  could 
find  pledges,  if  he  could  find  persons  who  would  undertake 
for  his  production  in  court  According  to  Glanvill  it  is  only 
in  cases  of  homicide  jthat  it  is  usual  to  keep  a  man  in  prison 
instead  of  allowing  hfm  to  find  pledges.  The  law  during  the 
next  century  grew  somewhat  stricter.  The  Statute  of  West- 
minster I  (1275,  c.  12)  defined  the  cases  in  which  pledges  are 
not  to  be  allowed — persons  taken  for  the  death  of  a  man,  or 
by  commandment  of  the  king  or  of  his  justices,  or  for  forest 
offences,  or  for  certain  other  causes,  are  not  to  be  replevied. 
This  statute  determined  what  offences  are  replevisable  and 
what  not  until  1826,  though  a  considerable  mass  of  interpre- 
tation grew  up  around  it,  and  certain  particular  offences  were 
from  time  to  time  specially  dealt  with  by  statute.  In  1275 
the  work  of  bailing  or  replevying  prisoners  was  still  done  by 
the  sheriff;  gradually  his  powers  in  this  respect  were  trans- 
ferred to  the  justices  of  the  peace.  A  person  who  felt  himself 
aggrieved  by  the  refusal  of  the  sheriff  or  the  justices  of  the 
peace  to  let  him  find  pledges  could  by  means  of  the  writ  of 
habeas  corpus  bring  his  case  before  one  of  the  common  law 
courts.  These  courts  had  also  exercised  a  power  of  bailing 
prisoners  whom  the  sheriff  or  the  justices  of  the  peace  could 
not  set  free :  for  instance,  the  sheriff  and  justices  of  the  peace 
could  not  set  a  man  at  liberty  if  he  was  accused  of  treason  or 
of  murder — they  were  distinctly  forbidden  to  do  so  by  the 
Statute  of  Westminster — but  the  King's  Bench  did  not 
consider  that  the  Statute  limited  its  power  of  allowing  bail, 


Ill  The  Writ  of  Habeas  Corpus         273 

and  it  exercised  a  discretionary  power  of  bailing  even  accused 
traitors  and  murderers. 

We  ought  to  notice,  even  though  we  cannot  afford  to 
explore  the  matter  to  the  bottom,  that  there  was  a  somewhat 
subtle  distinction  between  replevying  a  prisoner  and  bailing 
a  prisoner :  both  processes  had  much  the  same  practical 
result — but  the  distinction  gave  ground  for  the  contention 
that  the  power  of  bailing  exercised  by  the  King's  Bench 
was  not  limited  by  the  Statute  of  Westminster,  which  merely 
forbad  sheriffs  and  others  to  replevy  persons  in  certain 
particular  cases.  Now  this  small  point  became  of  great 
importance :  one  of  the  cases  in  which  a  man  was  not  to  be 
replevied  was  that  of  a  person  imprisoned  by  the  command- 
ment of  the  king :  could  then  the  courts  of  common  law  bail 
a  prisoner  who  was  imprisoned  by  the  king's  commandment? 
In  the  reign  of  Charles  I,  when  the  po\yer  of  the  council  to 
commit  to  prison  was  the  subject  of  hot  controversy,  it  was 
asserted  by  the  king's  advocates,  denied  by  the  parliamen- 
tarians, that  the  power  of  the  King's  Bench  was  restricted  by 
the  Statute  of  Westminster.  The  argument  of  the  king's 
opponents  took  this  form — the  court's  power  of  bailing 
prisoners  cannot  be  touched  by  the  Statute  of  Westminster, 
for  in  that  case  it  would  never  be  able  to  bail  an  accused 
murderer :  but  indubitably  it  does  bail  accused  murderers — 
therefore  this  statute  refers  merely  to  the  action  of  sheriffs 
and  similar  officers.  But  further,  and  this  matter  concerns 
us  more  directly,  a  number  of  cases  were  produced  in  which 
the  Court  of  King's  Bench  had  bailed  prisoners,  when  the 
cause  of  their  commitment  was  stated  to  be  the  king's 
command.  In  answer  to  the  writ  of  habeas  corpus,  the  gaoler 
had  returned  that  the  prisoner  was  committed  by  the  command 
of  the  king,  or  by  the  command  of  the  king's  council,  and  yet 
the  court  had  liberated  him  upon  bail.  There  was  one  clear 
case  of  this  from  1344 — the  lieutenant  of  the  Tower  had 
returned  that  one  J.  B.  was  in  prison  by  the  king's  command 
under  his  great  seal :  the  court  let  him  out  on  bail  quia 
videtur  curiae  breve  praedictum  sufficientem  non  esse  causam 
praedicti  J.  B.  in  prisona  retinendi.  The  other  cases  come 
from  the  reigns  of  the  Tudors  and  James  I — in  all  there  were 
M.  1 8 


274  Constitutional  History  PERIOD 

eleven  of  them — the  prisoners  were  liberated  on  bail,  though 
the  gaoler  returned  that  they  were  imprisoned  (in  some  cases) 
by  command  of  the  king,  or  (in  others)  by  command  of  the 
king's  council1. 

It  seems  that  in  Elizabeth's  reign,  in  1591  or  thereabouts, 
the  judges  were  consulted  by  the  council  as  to  the  power  of 
the  queen,  and  of  the  council,  to  commit  to  prison.  We  have 
two  versions  of  the  answer  that  they  gave,  the  one  is  in 
Anderson,  Reports,  vol.  I,  p.  297,  the  other  in  Hallam,  chap.  5. 
Both  are  singularly  obscure — perhaps  they  are  intentionally 
obscure — and  there  is  a  considerable  difference  between  them. 
The  judges  manage  to  evade  saying  distinctly  whether  they 
will  or  whether  they  will  not  bail  prisoners  when  the  return  to 
the  writ  of  habeas  corpus  simply  says  that  the  prisoner  was 
committed  by  the  command  of  the  king  or  the  command  of 
the  council.  They  $jvidently  think  (as  it  seems  to  me)  that 
the  cause  of  the  commitment  ought  to  be  assigned,  but  what 
they  will  do,  if  it  is  not  assigned,  they  do  not  say.  In  the 
struggle  of  Charles's  reign  both  parties  claimed  that  'the 
resolution  in  Anderson'  was  favourable  to  them:  to  me  it 
seems  to  show  that  the  judges  of  Elizabeth's  day  felt  them- 
selves in  a  great  difficulty — and  the  difficulty  grew  greater ; 
Coke  himself,  when  Chief  Justice,  held  that  one  committed 
by  the  council  was  not  bailable  by  any  court  in  England  ;  he 
afterwards  recanted  his  opinion  in  parliament,  saying  that  he 
had  been  misled  by  an  inapposite  precedent 

It  should  be  clearly  understood  that  the  judges  of  this  time 
did  not  question  the  power  of  the  council  to  act  judicially  and 
to  sentence  to  imprisonment, — the  jurisdiction  of  the  Court  of 
Star  Chamber  was  not  in  debate — nor  did  they  question  the 
power  of  the  council  to  commit  to  prison  persons  suspected 
of  crime.  The  doubt  was  merely  this — whether  if  the  council 
committed  to  prison,  the  courts  of  common  law  would  be 
prevented  from  considering  whether  the  suspected  person 
ought  to  be  bailed — was  the  king's  command  or  the  command 

1  Proceedings  on  the  Habeas  Corpus  brought  by  Sir  T.  Darnel  and  others, 
3  Charles  I,  1627,  State  Trials,  vol.  in,  pp.  i-— 59.  John  Bilston's  case 
(18  Edw.  Ill,  Rot.  33)  was  quoted  by  Coke,  24  March  1627,  in  the  Commons 
but  does  not  appear  to  have  been  cited  in  court,  ib.  p.  69. 


Ill     Imprisonment  by  the  Kings  Command  275 

of  the  council  a  sufficient  answer  to  the  writ  of  habeas 
corpus  ?  If  the  return  was  that  the  prisoner  was  sentenced 
to  imprisonment  by  the  Star  Chamber  there  would  have  been 
no  talk  of  setting  him  free ;  the  doubt  was  as  to  persons  who 
had  not  been  tried:  could  the  king  prevent  an  investigation  of 
their  cases  in  a  court  of  law,  by  telling  the  gaoler  to  return 
that  they  were  imprisoned  by  the  king's  command  ? 

Taking  a  general  survey,  everywhere  we  see  difficulties 
before  King  Charles  I.  The  system  by  which  England  has 
of  late  been  governed  is  a  questionable  system,  it  is  being 
questioned  in  parliament,  it  is  being  questioned  in  the  law 
courts.  The  more  men  look  back  at  history  (and  history 
is  now  being  minutely  examined  for  controversial  purposes) 
the  more  they  see  that  the  constitution  is  not  what  it  was 
und^r  the  Lancastrian  kings — that  the  mode  of  government 
conflicts  with  unrepealed  statutes,  ttiat  there  is  at  least 
plausible  excuse  for  pronouncing  a  great  deal  of  it  illegal. 
Whether  a  wiser  man  than  Charles  could  have  averted  or 
guided  the  coming  storm,  is  a  question  over  which  we  may 
well  think ;  but  everywhere  we  see  that  the  storm  is  coming. 

C.     History  of  the  Army. 

The  last  topic  with  which  we  can  deal  before  passing  to  a 
new  period  is  the  history  of  the  army — a  matter  of  which  we 
have  hitherto  said  too  little.  After  the  Conquest  the  feudal 
tenures  had  supplied  the  king  with  troops ;  but  the  feudal 
array  was  an  extremely  clumsy  weapon.  The  tenant  by 
knight  service  was  only  bound  to  serve  for  forty  days  in  the 
year — and  there  was  constant  friction  between  the  king  and 
his  barons  as  to  the  conditions  of  the  service — were  they 
bound  to  serve  in  Normandy?  were  they  bound  to  serve  in 
Germany? — on  more  than  one  famous  occasion  these  questions 
were  raised,  and  the  embarrassed  king  had  to  make  con- 
cessions. Already  in  1159  Henry  II  took  the  first  scutage, 
by  way  of  composition  for  personal  service1.  It  is  explained 
that  his  object  was  to  spare  the  lives  of  his  subjects  and  get 

1  Traces  of  scutage  have  been  found  as  early  as  the  reign  of  Henry  I.     Round, 
Feudal  England^  p.  268.     See  McKechnie,  Magna  Cart  a,  pp.  86 — 90. 

18— 2 


276  Constitutional  History          PERIOD 

his  foreign  wars  fought  for  him  by  mercenaries.  Towards 
the  end  of  his  reign,  in  1181,  he  revived  and  reorganized  the 
ancient  national  force  by  his  Assize  of  Arms.  Apparently 
the  idea  of  such  a  force  had  never  ceased  to  exist ;  it  had 
never  become  law  that  military  service,  at  all  events  defensive 
military  service,  was  limited  by  the  system  of  military  tenure. 
Every  man,  according  to  his  degree,  is  to  have  suitable 
weapons — even  the  poorest  free  man  is  to  have  his  spear  and 
helmet.  A  national  force,  organized  by  counties,  was  thus 
created. 

Henry  III  reissued  the  assize  in  an  amplified  form,  and 
it  forms  the  base  of  one  of  his  son's  great  statutes,  the  Statute 
of  Winchester.  Its  date  is  1285,  so  there  is  just  a  century 
between  it  and  the  Assize  of  Arms1.  Everyfree  man  between 
the  ages  of  fifteen  an$  sixty  is  to  have  armour  according  to 
his  wealth.  There  ar<£  five  classes,  ranging  from  him  who  has 
£15  of  lands  and  40  marks  of  goods,  a  habergeon,  iron 
helmet,  sword,  knife  and  horse,  down  to  him  who  is  merely 
to  have  his  bow  and  arrows.  Twice  a  year  the  arms  are  to 
be  viewed  in  each  hundred  by  two  elected  officers  called 
constables.  These  provisions  occur  in  close  connection  with 
others  enforcing  the  ancient  duties  of  watch  and  ward,  of 
hue  and  cry.  If  this  national  force  is  to  be  useful  against 
the  public  enemy,  it  is  to  be  useful  also  for  police  purposes, 
for  apprehending  malefactors  and  the  like.  Its  officers  you 
will  observe  are  'constables' — the  title  is  originally  a  military 
title,  which  spreads  downwards  from  the  king's  constable, 
who  along  with  the  king's  marshall  arrays  and  leads  the  royal 
forces.  Even  the  lowest  officers  in  the  national  force  become 
constables ;  the  constable  of  the  township  looks  after  the 
armour  of  the  township,  above  him  are  the  constables  of  the 
hundred ;  they  again  are  below  the  constable,  the  high  con- 
stable (as  he  comes  to  be  called)  of  the  county.  The 
military  duties  of  the  constable  of  the  township  are  from 
the  first  allied  with  the  duty  of  keeping  the  peace  and 
apprehending  malefactors — the  ancient  village  officers,  the 
reeves,  the  headboroughs  (chiefs  of  the  frankpledge),  become 
also  the  constables,  and  lose  their  older  names. 

1  Select  Charters,  pp.  154 — 6,  469 — 74. 


ill  Commissions  of  Array  277 

To  return.  The  obligation  of  this  armed  force,  defined 
by  the  Statute  of  Winchester,  to  take  part  in  war  offensive 
or  defensive,  is  for  a  long  while  very  indefinite.  Of  course  it 
could  not  be  contended  that  the  king  might  send  every  able- 
bodied  man  out  of  the  realm  to  serve  in  France.  We  find 
that  Edward  I  commissions  certain  of  his  servants  to  choose 
out  a  fixed  number  of  able-bodied  men  from  their  respective 
counties.  In  other  words,  he  issues  commissions  of  array. 
The  forces  thus  levied  he  pays  at  his  own  cost.  The  troops 
from  a  county  are  under  the  command  of  a  royal  capitaneus 
or  captain,  in  whom  we  may  see  the  forerunner  of  the  lord- 
lieutenant  of  later  times.  The  sheriff  would  naturally  be 
the  head  of  the  county  force,  and  so  in  theory  he  remains ; 
it  is  he  who  can  raise  the  power  of  the  county,  the  posse 
comitatvs,  for  the  pursuit  of  malefactors ;  but  for  actual 
warfare  an  annual  officer  (and  permanent  sheriffs  the  country 
will  not  stand)  is  not  a  good  commander.  So  the  sheriff 
loses  his  military  functions  at  a  time  when  the  institution 
of  permanent  justices  of  the  peace  is  sapping  many  other  of 
his  powers.  Commissions  of  array  become  common  under 
Edward  II  and  Edward  III,  and  the  king  does  not  always 
pay  the  soldiers  whom  he  levies — he  expects  the  counties  to 
pay  them  ;  the  counties  were  required  to  provide  arms  not 
prescribed  by  the  Statute  of  Winchester,  to  pay  the  wages 
of  men  outside  of  their  own  area  and  even  outside  of  the 
kingdom.  Complaints  of  this  become  loud.  In  1327  the 
commons  petition  that  they  be  not  compelled  to  arm  them- 
selves at  their  own  cost  contrary  to  the  Statute  of  Winchester, 
or  to  serve  beyond  the  limits  of  their  counties,  except  at  the 
king's  cost.  The  petition  was  granted  by  statute  (l  Edw.  Ill, 
stat.  2,  c.  5)  in  this  modified  form.  'The  king  wills  that 
no  man  be  charged  to  arm  himself  otherwise  than  he  was 
wont  in  the  time  of  his  (the  king's)  progenitors,  and  that  no 
man  be  compelled  to  go  out  of  his  shire,  but  where  necessity 
requireth  and  sudden  coming  of  strange  enemies  into  the 
realm;  and  then  it  shall  be  done  as  hath  been  used  in 
times  past  for  the  defence  of  the  realm/  But  Edward  had 
to  make  a  further  concession.  By  statute  (25  Edw.  Ill, 
stat.  5,  c.  8)  it  is  accorded  and  assented  that  no  man  shall  be 


278  Constitutional  History  PERIOD 

constrained  to  find  men-at-arms,  hobblers  nor  archers,  other 
than  those  which  hold  by  such  services,  if  not  by  common 
assent  and  grant  made  by  parliament.  Apparently  those 
statutes  were  habitually  broken  or  evaded.  In  1402  they 
were  confirmed  by  statute  (4  Hen.  IV,  c.  13),  and  they  seem 
to  have  been  observed  during  the  Lancastrian  reigns.  The 
Welsh  and  Scottish  wars  of  Henry  VI  were  regarded  as 
defensive,  resistances  of  invasion,  and  the  county  forces  could 
lawfully  be  called  to  meet  them.  The  army  whereby  Henry  V 
won  his  victories  in  France  consisted  partly  of  soldiers 
voluntarily  enlisted  who  had  the  king's  wages,  partly  of  forces 
raised  by  lords  who  served  the  king  by  indenture,  by  special 
bargain.  During  the  Wars  of  the  Roses  both  sides  used  the 
king's  name  for  commissions  of  array,  and  the  country  got 
thoroughly  accuston  edvto  intestine  war, compulsory  service,  and 
extorted  loans  and  benevolences.  The  statutes  of  Edward  III 
remained  on  the  statute  book ;  so  did  the  Statute  of  Win- 
chester. 

The  Tuclor  despotism  was  not  enforced  by  any  standing 
army ;  that  is  one  of  the  most  noticeable  things  in  the 
history  of  the  time.  One  or  two  hundred  yeomen  of  the 
guard  and  a  few  guards  in  the  fortresses  were  the  only 
soldiers  that  the  king  kept  permanently  in  his  pay.  Com- 
missions of  array,  however,  were  issued  from  time  to  time ; 
the  counties  were  compelled  to  provide  soldiers  even  for 
foreign  service,  and  the  statutes  of  an  earlier  time  seem  to 
have  been  disregarded  and  perhaps  forgotten.  An  important 
act  of  1557  (4  and  5  Philip  and  Mary,  c.  3)  takes  no  notice  of 
the  old  acts,  but  speaks  of  mustering  and  levying  men  to  serve 
in  the  wars  as  a  recognized  legal  practice,  and,  as  it  seems  to 
me,  implicitly  sanctions  impressment  by  means  of  commissions 
of  array,  even  impressment  for  foreign  service.  Certain  offences 
when  committed  by  the  soldiers  when  mustered  and  levied 
are  to  be  tried  by  the  king's  lieutenant, 'the  lord-lieutenant'  as 
he  is  here  called.  The  usage  of  appointing  a  permanent  lord- 
lieutenant  for  each  county  is  said  to  date  from  this  reign. 

Another  statute  of  this  same  year  1557  (4  and  5  Philip  and 
Mary,  c.  2)  expressly  repealed  so  much  of  every  statute  of 
earlier  date  as  concerned  the  finding  or  keeping  of  horse  or 


Ill  Lack  of  a  Standing  Army          279 

armour;  and  it  enacted  a  new  scale  of  armour,  which  replaced 
that  ordained  by  the  Statute  of  Winchester.  But  this  statute 
was  itself  repealed  in  1603  by  I  James  I,  c.  25,  an  act  which 
repealed  in  a  wholesale  fashion  a  large  number  of  the  Tudor 
statutes.  No  reason  is  given  for  the  repeal;  Hallam  suggests 
that  the  accession  to  the  English  throne  of  the  king  of  Scotland 
had  removed  the  chief  necessity  for  a  defensive  force.  But  the 
repeal  had  a  perhaps  unexpected  effect.  Until  1850  it  was 
our  law  that  if  statute  A  be  repealed  by  statute  B,  and  then 
statute  B  be  simply  repealed  by  statute  C,  statute  A  is  thus 
revived — so  the  Statute  of  Winchester  came  to  life  once  more1. 
Then  in  the  days  of  Charles  I  it  became  matter  of  hot  debate 
whether  the  armed  force  which  the  old  statutes  created  was 
at  the  king's  disposal.  This  force  was  just  acquiring  the  new 
name  of  militia,  and  the  control  over  the  militia  became  one  of 
the  chief  points  of  controversy  between  crown  and  parliament 
Meanwhile  no  standing  army  is  kept  up ;  for  foreign 
warfare  a  temporary  army  is  got  together  partly  by  virtue 
of  feudal  obligation,  partly  by  voluntary  enlistment,  partly 
by  impressment.  However,  in  James's  reign  we  find  that  the 
troops  are  not  always  disbanded  immediately  on  their  return 
to  England,  and  we  find  that  commissions  of  martial  law  are 
issued  for  their  governance.  Thus  at  the  end  of  the  reign, 
December,  1624,  there  are  troops  at  Dover.  A  commission  is 
issued  to  the  Mayor  and  others  empowering  them  'to  proceed 
according  to  the  justice  of  martial  law  against  such  soldiers... 
and  other  dissolute  persons  joining' with  them. ..as  commit 
any  robberies,  felonies,  mutinies  or  other  outrages  or  mis- 
demeanours...and  then  to  execute  and  cause  to  be  put  to 
death  according  to  the  law  martial2.1  Of  the  very  questionable 
legality  of  such  commissions  we  have  before  spoken :  here 
let  us  notice  that  only  by  such  means  could  a  standing  army 
be  held  together.  This,  I  think,  has  been  the  verdict  of  long 
experience,  that  an  army  cannot  be  kept  together  if  its 
discipline  is  left  to  the  ordinary  common  law.  These  com- 
missions, you  will  observe,  went  far  beyond  matters  of  military 

1  13  and  14  Victoria,  c.  n.  5. 

2  Pat.  Roll,  22  Jac.  I,  part  4,  printed  in  Prothero,  Statutes  and  Constitutional 
Documents  (1559—1625),  pp.  398—9. 


280  Constitutional  History     PERIOD  in 

% 

discipline — they  empowered  the  commissioners  to  try  soldiers 
4  and  other  dissolute '  persons  for  robberies  and  other  felonies, 
as  well  as  for  mutinies.  The  difficulty  of  keeping  a  standing 
army  was,  as  James's  successors  found,  a  double  difficulty — 
(i)  that  of  maintaining  any  discipline  without  having  recourse 
to  illegal  commissions,  (2)  that  of  paying  troops  without  having 
recourse  to  illegal  modes  of  raising  money. 

As  regards  the  legality  of  pressing  soldiers,  we  have  this 
to  remember  in  the  king's  favour,  and  it  is  too  often  forgotten, 
that  the  legality  of  pressing  sailors  seems  to  have  been  fully 
admitted.  From  an  early  time,  certainly  through  the  fourteenth 
century,  we  find  that  the  king  presses  sailors  and  presses 
ships  for  transport  and  for  naval  warfare.  This  is  done  by 
means  of  commissions  closely  similar  to  the  commissions  of 
array.  But  while  the  commissions  of  arraying  soldiers  excited 
much  opposition,  an<a  parliament  was  constantly  petitioning 
about  them  and  sometimes  succeeded  in  getting  statutes 
passed  limiting  the  king's  power,  the  pressing  of  sailors  and 
ships  seems  not  to  have  been  a  great  grievance.  All  one 
hears  by  way  of  protest  is  that  the  sailors  ought  to  be  at  the 
king's  wages  from  the  time  when  they  are  on  board  ship.  A 
statute  of  1378  (2  Ric.  II,  c.  4)  distinctly  recognizes  the 
lawfulness  of  the  practice — it  speaks  of  sailors  arrested  and 
retained  for  the  king's  service,  and  provides  a  punishment  for 
them  if  they  run  away.  Many  later  statutes  speak  of  pressing 
as  a  lawful  process.  There  are  several  from  the  last  century 
which  do  so  by  making  exceptions ;  in  these  and  those 
circumstances  sailors  are  not  to  be  impressed.  No  word  in  the 
Petition  of  Right  or  the  Bill  of  Rights  is  directed  against  this 
prerogative ;  the  class  affected  by  it  was,  I  suppose,  too  small 
to  make  its  voice  heard,  or  else  the  necessity  of  manning  a 
navy  was  considered  so  great  that  the  king's  power  was  never 
called  in  question. 


PERIOD    IV. 

SKETCH  OF  PUBLIC  LAW  AT  THE  DEATH  OF 
WILLIAM  III. 

WE  pass  over  an  exciting  time,  and  placing  ourselves  at 
the  quiet  accession  of  Queen  Anne,  we  ask  what  have  been 
the  legal  and  permanent  results  of  the  great  events — Rebellion, 
Restoration,  Revolution.  The  chronological  sequence  of 
these  events  we  certainly  ought  to  know ,  but  we  have  not 
time  for  everything,  and  I  think  that  we  had  better  adopt  an 
analytical  rather  than  a  historical  treatment.  What,  then,  is 
the  constitution  in  1702  ? 

We  can  now  say  with  some  certainty  that  we  have  a 
composite  sovereign  body — the  king,  lords  spiritual  and  tem- 
poral, and  commons  in  parliament  assembled.  Let  us  first 
look  at  the  constitution  of  each  of  these  factors — how  and  by 
what  right  do  they  come  to  be  what  they  are  ? 

A.     Constitution  of  the  Kingship. 

And  first  of  the  king.  His  title  is  now  a  statutory  title  if 
it  be  a  title  at  all.  Of  course  it  is  the  opinion  of  a  considerable 
number  of  persons  that  his  title  is  bad ;  let  us  attempt  to 
understand  their  opinion.  Not  to  go  back  to  the  Middle 
Ages,  to  the  parliamentary  right  of  the  House  of  Lancaster, 
the  hereditary  right  of  the  House  of  York,  we  remember  that 
Henry  VIII  came  more  than  once  to  parliament  for  an  act 
regulating  the  succession  to  the  throne,  even  obtained  an  act 
enabling  him  in  default  of  issue  to  leave  the  crown  to  whom 
he  would.  In  Elizabeth's  reign  it  was  treason  to  affirm  that 
the  succession  could  not  be  settled  by  act  of  parliament. 
We  have  seen,  however,  that  James,  by  the  quiet  consent  of 
the  nation,  succeeded  to  the  crown;  though,  if  statutes  on 


282  Constitutional  History  PERIOD 

such  a  matter  had  any  validity,  the  succession  was  probably 
illegal;  probably  Henry  VIII,  in  exercise  of  a  statutory 
power,  had  preferred  the  issue  of  his  younger  to  those  of  his 
elder  sister.  There  was  much  therefore  in  his  own  case  to 
set  James  on  thinking  that  the  inheritance  of  the  crown  was 
divinely  appointed  and  was  not  to  be  meddled  with  by  act  of 
parliament.  He  was  succeeded  by  his  son  Charles  I,  and 
when  Charles  I  was  murdered  he  was  immediately  succeeded 
by  his  son  Charles  II.  I  put  the  matter  in  that  way  because 
that  was  in  1702,  and  is  even  now  the  legal  view  of  the 
matter,  and  we  must  not  allow  any  sympathies  or  antipathies 
to  interfere  with  our  statement  of  the  law.  In  1702  it  was 
not  questioned  that  the  first  Charles  had  been  murdered,  and 
that  the  second  began  to  reign  on  30  January,  1649.  On 
29  May,  1660,  the  king  began  to  enjoy  his  own  again,  but  it 
already  was  his  own  a^d  he  had  been  reigning  for  eleven  years 
and  more.  All  the  acts  of  the  Long  Parliament  which  had 
not  obtained  the  king's  assent  were  simply  void.  At  the 
Restoration  no  statute  was  passed  to  declare  them  void ; 
they  were  obviously  void  as  having  been  made  without  the 
royal  assent,  and  no  repeal  was  necessary.  In  1702  no  lawyer 
would  have  appealed  to  them  as  law,  and  no  lawyer  would  do 
so  at  the  present  day :  they  have  no  place  in  our  statute 
book.  This  theory  had  been  pressed  far.  On  1 6  March, 
1660,  the  remains  of  the  Long  Parliament  had  declared  itself 
dissolved.  Elections  were  held  without  the  king's  writ — no 
decisive  measure  had  yet  been  taken  for  inviting  Charles  to 
England — and  a  parliament,  afterwards  known  as  cthe  Con- 
vention Parliament/  consisting  of  a  few  lords  and  the  newly- 
elected  commons,  assembled  on  25  April.  It  at  once  pro- 
ceeded to  enter  into  negotiations  with  Charles  ;  on  7  May  the 
houses  resolved  that  the  king  should  be  proclaimed ;  on  the 
24th  he  set  sail ;  on  the  26th  he  landed ;  on  the  29th  he  met 
the  parliament  An  act  was  at  once  passed  declaring  that  the 
Long  Parliament  was  dissolved  (it  had  never  been  dissolved  by 
the  king,  and  so  there  might  be  question  as  to  its  dissolution) 
and  that  the  lords  and  commons  now  sitting  at  Westminster 
in  this  present  parliament  are  the  two  houses  of  parliament 
notwithstanding  the  fact  that  they  had  not  been  summoned 


IV  The  Convention  Parliaments 

by  the  king's  writ.  Of  course,  however,  if  the  king's  writ  of 
summons  was  necessary  to  the  legal  being  of  a  parliament, 
this  defect  could  not  be  remedied  by  a  parliament  which  had 
come  together  without  such  writ — if  it  was  not  a  true  parlia- 
ment, its  own  declaration  could  not  make  it  so.  This  Con- 
vention Parliament  sat  on  until  December,  1660,  and  passed 
a  number  of  acts.  Another  parliament  met  in  May,  1661, 
and  this  of  course  was  summoned  by  the  king's  writ  in  due 
form.  It  proceeded  to  pass  an  act  confirming  the  acts  of  the 
Convention  Parliament  as  though  their  validity  might  be 
questionable  owing  to  the  want  of  the  king's  writ.  All  there- 
fore that  was  done  at  the  Restoration  was  done  on  the  theory 
that  Charles  II  had  reigned  from  the  moment  of  his  father's 
death. 

Passing  to  the  events  of  1688  we  see  that  it  was  extremely 
difficult  for  any  lawyer  to  make  out  tha.  what  had  then  been 
done  was  lawful.  What  had  happened  was  briefly  this.  In 
July,  1688,  James  had  dissolved  parliament,  so  that  at  the 
critical  moment  there  was  no  parliament  in  existence.  On 
5  November  William  landed;  on  nlDecember  James  fled 
from  London  and  dropped  the  great  $eal  into  the  Thames ; 
on  the  22nd  he  left  the  kingdom.  William,  Prince  of  Orange, 
invited  an  assembly.  It  was  rapidly  got  together.  He  sum- 
moned the  peers  and  such  of  the  members  of  the  parliaments 
of  Charles  II's  reign  (not  James  II)  as  were  in  London;  the 
aldermen  of  London  also  were  summoned.  This,  of  course, 
the  lawyer  cannot  but  regard  as  a  quite  irregular  assembly, 
called  by  one  who  is  not,  who  does  not  profess  to  be  king. 
The  assembly  met  on  26  December,  1688,  and  it  advised  the 
Prince  to  summon  a  'convention*  of  the  estates  of  the  realm. 
In  accordance  with  this  advice  he  invited  the  lords  to  come, 
and  the  counties  and  boroughs  to  send  representatives  to  a 
convention  on  22  January,  1689.  The  convention  met.  On 
25  January  the  commons  resolved  that  King  James  II  having 
endeavoured  to  subvert  the  constitution  of  the  kingdom  by 
breaking  the  original  contract  between  king  and  people,  and 
by  the  advice  of  Jesuits  and  other  wicked  persons  having 
violated  the  fundamental  laws  and  having  withdrawn  himself 
out  of  the  kingdom,  has  abdicated  the  government,  and  that 


282  Constitutional  History  PERIOD 

the  throne  has  thereby  become  vacant  After  some  hesitation, 
on  12  February  the  lords  agreed  to  this  resolution,  and  it  was 
resolved  that  William  and  Mary  should  be  proclaimed  king 
and  queen.  On  13  February  the  Houses  waited  on  William 
and  Mary  and  tendered  them  the  crown,  accompanied  by  the 
Declaration  of  Rights.  The  crown  was  accepted.  The  con- 
vention, thereupon  fallowing  the  precedent  of  1660,  passed 
an  act  declaring  itself  to  be  the  parliament  of  England,  not- 
withstanding the  want  of  proper  writs  of  summons.  This 
Convention  Parliament  was  not  dissolved  until  early  in  1690, 
and  passed  many  important  acts,  including  the  Bill  of  Rights, 
which  incorporated  the  Declaration  of  Rights.  A  new  parlia- 
ment met  on  22  March,  1690,  and  this  of  course  was  duly 
summoned  by  writs  of  the  king  and  queen.  It  proceeded  to 
declare  by  statute  that  the  king  and  queen  were  king  and 
queen,  and  that  the  ^atutes  made  by  the  convention  were  and 
are  laws  and  statutes  of  the  kingdom. 

Now  certainly  it  wa$  very  difficult  for  any  lawyer  to  argue 
that  there  had  not  been  a  revolution.  Those  who  conducted 
the  revolution  sought,  and  we  may  well  say  were  wise  in 
seeking,  to  make  the  revolution  look  as  small  as  possible,  to 
make  it  as  like  a  legal  proceeding,  as  by  any  stretch  of 
ingenuity  it  could  be  made.  But  to  make  it  out  to  be  a 
perfectly  legal  act  seems  impossible.  Had  it  failed,  those  who 
attempted  it  would  have  suffered  as  traitors,  and  I  do  not 
think  that  any  lawyer  can  maintain  that  their  execution 
would  have  been  unlawful.  The  convention  hit  upon  the 
word  'abdicated1  as  expressing  James's  action,  and,  accord- 
ing to  the  established  legal  reckoning,  he  abdicated  on 
the  ii  December,  1688,  the  day  on  which  he  dropped  the 
great  seal  into  the  Thames.  From  that  day  until  the  day 
when  William  and  Mary  accepted  the  crown,  13  February, 
1689,  there  was  no  king  of  England.  Possibly  the  convention 
would  better  have  expressed  the  truth  if,  like  the  parliament 
of  Scotland,  it  had  boldly  said  that  James  had  forfeited  the 
crown.  But  put  it  either  way,  it  is  difficult  for  a  lawyer  to 
regard  the  Convention  Parliament  as  a  lawfully  constituted 
assembly.  By  whom  was  it  summoned?  Not  by  a  king  of 
England,  but  by  a  Prince  of  Orange.  Even  if  we  go  back 


IV  Legality  of  the  Revolution  285 

three  centuries  we  find  no  precedent.  The  parliaments  of 
1327  and  of  1399  were  summoned  by  writs  in  the  king's  name 
under  the  great  seal.  Grant  that  parliament  may  depose  a 
king,  James  was  not  deposed  by  parliament ;  grant  that 
parliament  may  elect  a  king,  William  and  Mary  were  not 
elected  by  parliament.  If  when  the  convention  met  it  was  no 
parliament,  its  own  act  could  not  turn  it  into  a  parliament. 
The  act  which  declares  it  to  be  a  parliament  depends  for  its 
validity  on  the  assent  of  William  and  Mary.  The  validity  of 
that  assent  depends  on  their  being  king  and  queen  ;  but  ho\v 
do  they  come  to  be  king  and  queen  ?  Indeed  this  statute 
very  forcibly  brings  out  the  difficulty — an  incurable  defect. 
So  again  as  to  the  confirming  statute  of  1690. 

Do  not  think  that  I  am  arguing  for  the  Jacobite  cause. 
I  am  only  endeavouring  to  show  you  how  much  purely  legal 
strength  that  cause  had.  It  seems  to  i^e  that  we  must  treat 
the  Revolution  as  a  revolution,  a  very  necessary  and  wisely 
conducted  revolution,  but  still  a  revolution.  We  cannot  work 
it  into  our  constitutional  law. 

Passing  from  this  point,  we  notice  that  the  tender  of  the 
crown  was  made  to  William  and  Mary  jointly ;  but  William 
had  refused  to  reign  merely  in  his  wife's  right — such  as  it  was 
— and  the  declaration  of  the  convention  was  that  William  and 
Mary  were  to  hold  the  crown  during  their  joint  lives  and  the 
life  of  the  survivor  of  them,  that,  however,  the  sole  and  full 
exercise  of  the  regal  power  was  to  be  in  William  during  their 
joint  lives,  but  was  to  be  exercised  in  the  names  of  William 
and  Mary,  and  that  after  their  deceases  the  crown  should  go 
to  the  issue  of  Mary,  and  in  default  of  her  issue  to  the 
Princess  Anne  and  the  heirs  of  her  body,  and  for  default  of 
such  issue  to  the  heirs  of  the  body  of  William.  The  Bill  of 
Rights,  passed  in  1689,  confirmed  this  settlement,  adding  a 
clause  to  the  effect  that  any  person  who  should  hold  com- 
munion with  the  See  or  Church  of  Rome  or  profess  the  Popish 
religion  or  marry  a  Papist  should  be  incapable  to  inherit, 
possess  or  enjoy  the  crown  and  government  of  the  realm,  and 
that  the  crown  should  pass  to  the  person  next  entitled.  In 
1700,  after  the  death  of  Mary,  William  being  childless,  and 
Anne's  son  the  Duke  of  Gloucester  being  dead,  it  became 


286  Constitutional  History  PERIOD 

necessary  to  make  a  further  settlement,  and  by  the  Act  of 
Settlement  (12  and  13  Will  III,  c.  2)  it  was  ordained  Ifiat 
in  default  of  issue  of  Mary,  Anne,  and  William  the  crown 
should  go  to  the  Princess  Sophia  of  Hanover  and  the  heirs  of 
her  body  being  Protestants.  She,  a  daughter  of  Elizabeth 
Queen  of  Bohemia,  a  daughter  of  James  I,  was  the  nearest 
heir  according  to  the  ordinary  rules  of  inheritance,  if  Roman 
Catholics  were  excluded. 

A  new  form  of  coronation  oath  has  been  provided.  About 
the  coronation  oath  there  has  been  controversy.  In  the  reign 
of  Charles  I  it  became  known  that  the  king  had  taken  an  oath 
which  differed  in  some  respects  from  the  ancient  form.  That 
ancient  form  has  come  before  us  already.  In  it  the  king 
promised  to  hold  and  keep  the  laws  and  righteous  customs 
which  the  community  of  the  realm  shall  have  chosen — quas 
vidgus  elegerit,  les  ymls  la  communaute  de  vostre  roiaume  aura 
esleu.  Now  at  Charles's  coronation  the  last  question  put  to 
him  had  been  this :  *  Will  you  grant  to  hold  and  keep  the 
laws  and  rightful  customs  which  the  communalty  of  this  your 
kingdom  have,  and  will  you  defend  and  uphold  them  to  the 
honour  of  God  as  much  as  in  you  lieth  ?'  This  form,  you  will 
observe,  does  not  assert  the  right  of  the  people,  the  community 
of  the  realm,  to  choose  its  own  laws :  the  king  is  to  hold  and 
keep  the  laws  which  the  communalty  has.  Archbishop  Laud 
was  accused  of  having  tampered  with  the  oath.  His  defence 
seems  on  this  point  to  have  been  quite  sound.  He  had 
administered  the  oath  in  the  terms  in  which  it  had  come 
to  him,  the  terms  to  "vvhich  James  I  had  sworn,  the  terms 
to  which  Elizabeth  had  sworn.  As  to  Mary's  oath  I  know 
nothing;  but  a  change  had  been  made  on  the  occasion  of 
Edward  VTs  accession.  He  had  sworn  to  make  no  new  laws 
but  such  as  should  be  to  the  honour  and  glory  of  God  and  to 
the  good  of  the  commonwealth,  and  that  the  same  should  be 
made  by  consent  of  his  people  as  hath  been  accustomed. 

But  a  change  seems  to  have  been  made  yet  earlier.  There 
is  extant  a  copy  of  the  coronation  oath  in  which  alterations 
have  been  made  in  the  handwriting  of  Henry  VIII1.  The  last 

1  A  facsimile  of  the  oath  with  Henry's  corrections  is  given  in  English  Corona- 
tion Records^  ed.  L.  G.  Wickham-Legg,  pp.  240 — i. 


IV  The  Coronation  Oath  287 

clause  reads  thus — I  will  note  the  changes  made  by  the  king's 
own  hand — '  And  that  he  shall  graunte  to  hold  the  laws  and 
[approvyd]  customes  of  the  realm  [lawfull  and  nott  prejudicial 
to  his  Crowne  or  Imperiall  duty],  and  to  his  power  kepe  them 
and  affirm  them  which  the  [nobles  and]  people  have  made 
and  chosen  [with  his  consent].'  The  interpolations  are  very 
remarkable:  they  seem  to  point  to  the  notion  of  an  indefeasible 
royal  power  which  laws  cannot  restrain  ;  the  king  will  not 
bind  himself  to  maintain  laws  prejudicial  to  his  crown.  Thus 
since  the  accession  of  Edward  VI  the  terms  of  the  oath  seem 
to  have  varied — and  Laud,  I  believe,  successfully  showed  that 
he  could  ^not  be  charged  with  any  insidious  alterations1. 
But  the  meaning  of  the  more  ancient  form,  the  form  of 
Edward  II's  oath,  now  became  a  subject  of  bitter  controversy; 
it  was  maintained  that  the  elegerit — ' quas  vulgus  elegerit* — 
could  not  refer  to  the  future :  the  kin^s  are  to  uphold  the 
old  law,  the  law  which  the  people  had^hosen,  not  the  laws 
which  the  people  should  choose.  On  the  other  hand,  it  was 
even  urged  that  the  terms  of  the  oath  excluded  the  king  from 
all  share  in  legislation — that  without  perjury  he  could  reject 
no  bill  passed  by  two  Houses.  Neither  contention  would 
harmonize  with  past  history ;  on  the  one  hand  the  old  oath 
was  a  not  indistinct  declaration  that  there  were  to  be  no  laws 
save  those  chosen  by  the  community  of  the  realm ;  on  the 
other  hand  the  contention  that  the  king  was  no  part  of  the 
community  was  wild.  However,  when  such  opposite  views 
were  taken  of  the  king's  obligation,  the  time  for  war  had 
come. 

The  oaths  of  Charles  II  and  James  II  seem  to  have  been 
just  those  which  Charles  I  had  taken.  Immediately  after  the 
Revolution  a  new  oath  was  provided  by  a  statute  (i  William 
and  Mary,  c.  6)  which  recites  that  the  old  oath  was  framed  in 
doubtful  words  and  expressions  with  relation  to  ancient  laws 
and  constitutions  at.  this  time  unknown.  The  most  important 
phrase  is  this — the  king  promises  to  govern  the  people  of 
England  and  the  dominions  thereto  belonging  according  to 
the  statutes  in  parliament  agreed  on,  and  the  laws  and  customs 

1  The  question  is  discussed  by  J.  Wickham-Legg,   The  Coronation  Order  of 
King  James  /,  London,  1902,  pp.  xcvi — cii. 


288  Constitutional  History  PERIOD 

of  the  same;  thus  '  the  statutes  in  parliament  agreed  on'  take 
the  place  of  leges  quas  vulgns  elegerit. 

By  another  clause  in  the  oath  the  king  has  to  swear  that 
he  will  maintain  to  the  utmost  of  his  power  the  true  profession 
of  the  gospel  and  the  protestant  reformed  religion  established 
by  law,  and  preserve  unto  the  bishops  and  clergy  of  the  realm 
and  the  churches  committed  to  their  charge,  all  such  rights 
and  privileges  as  by  law  do  or  shall  appertain  unto  them. 
Another  obligation  is  laid  upon  the  king  by  the  Bill  of  Rights 
and  by  the  Act  of  Settlement :  on  the  first  day  of  his  first 
parliament  he  must  make  the  declaration  against  transubstan- 
tiation,  the  invocation  of  the  saints  and. the  sacrifice  of  the 
mass.  The  clauses  which  deprive  him  of  his  crown  in  case  he 
holds  communion  with  the  Church  of  Rome  or  marries  a  Papist, 
have  already  come  before  us. 


B.     Constitution  of  Parliament. 

We  turn  to  spo&k  of  the  composition  of  parliament.  The 
number  of  the  lords  spiritual,  the  mode  of  their  appointment, 
has  not  been  changed :  they  are  now  a  small  minority  in  the 
Upper  House.  But  though  we  have  here  to  chronicle  that 
things  are  as  they  were,  still  we  must  remember  that  there 
has  been  a  period  during  which  the  bishops  have  had  no  place 
in  parliament.  The  royal  assent  to  an  act  excluding  them  was 
given  on  13  Feb.  1642 — this  was  one  of  the  last  concessions 
extorted  from  Charles.  They  were  not  restored  by  the 
Convention  Parliament,  but  were  restored  by  the  second 
parliament  of  Charles  II  in  1661.  They  took  their  seats  on 
20  Nov.,  after  an  interval  of  nineteen  years. 

The  number  of  temporal  peers  has  greatly  increased.  To 
Elizabeth's  last  parliament,  1597,  56  were  summoned.  To 
James's  first  pailiament,  1604,  78-  To  the  first  parliament  of 
Charles  1,97.  To  the  parliament  of  1661,  142.  To  that  of 
1685,  145.  The  grant  of  a  peerage  has  been  used  as  a  political 
reward.  As  to  the  mode  of  creating  peers  there  is  little  to  be 
added  to  what  has  already  been  said.  It  has,  however,  been 
decided  that  a  peerage  cannot  be  bound  up  with  the  possession 
of  a  tract  of  land  ;  peerage  by  tenure  is  regarded  as  extinct. 
Also, it  has  now  become  the  quite  definite  rule  that  a  summons 


IV  The  House  of  Lords  289 

by  name  to  parliament,  followed  by  an  actual  sitting,  confers 
a  hereditary  peerage.  However,  for  a  long  time  past  all  peers 
have  been  created  by  letters  patent. 

Here  again  we  have  to  remember  that  there  has  been  a 
short  breach  of  continuity,  not  indeed  in  law,  but  in  fact 
During  the  Civil  War  the  number  of  lords  who  attend 
parliament  is  small — it  becomes  thirteen  or  thereabouts.  On 
the  eve  of  the  king's  trial  on  4  Jan.  1649,  ^e  commons  voted 
that  'the  commons  of  England  in  Parliament  assembled  do 
declare  that  the  People  are  under  God  the  original  of  all  just 
power,  and  that  whatsoever  is  enacted  or  declared  for  law  by 
the  commoYis  in  Parliament  assembled,  hath  the  force  of  law 
...although  the  consent  and  concurrence  of  the  King  or  House 
of  Peers  be  not  had  thereunto/  On  6  Feb.  the  lords  sat  for 
the  last  time.  On  19  March  the  commo/is  passed  an  act  for 
abolishing  the  House  of  Peers.  On  25  April,  1660,  the  lords 
reappear  once  more  in  the  Convention  Parliament,  after  an 
interval  of  eleven  years.  Their  case  must  be  distinguished 
from  that  of  the  bishops.  The  bishops  were  deprived  of  their 
seats  by  a  statute  passed  by  king,  lords  and  commons ;  it 
required  a  statute  to  recall  them  :  the  temporal  lords  were 
excluded  simply  by  the  act  of  the  commons,  an  act  which  so 
soon  as  the  Restoration  was  agreed  on,  was  regarded  simply 
as  null  and  void. 

The  numbers  of  the  House  of  Commons  have  grown.  In 
the  first  parliament  of  James  there  were  467  members.  In  the 
Long  Parliament  (1640),  504.  In  the  parliament  of  1661,  507; 
in  1679,  513.  The  causes  of  the  increase  have  been  various. 
In  1672  a  statute  admitted  two  knights  for  the  County  Palatine 
of  Durham,  and  two  citizens  for  the  city.  Except  in  this 
respect  the  representation  of  the  counties  remains  unaltered. 
We  have  seen  that  under  Edward  VI,  Mary,  Elizabeth,  and 
James,  the  number  of  borough  members  was  increased  by 
royal  charter — thus  it  was  hoped  that  a  House  favourable  to 
the  crown  might  be  returned.  Charles  I  added,  or  restored, 
I  think,  eighteen  borough  members1.  Charles  II  exercised 

1  *  Restoration'  is  the  right  word.  The  nine  boroughs  restored  to  parliamentary 
rights  under  Charles  I  were  however  restored  by  resolution  of  the  commons  not 
by  royal  charter.  Porritt,  The  Unreformed  Parliament)  voj.  I,  p.  382. 

M.  19 


290  Constitutional  History  PERIOD 

this  prerogative  but  once,  he  gave  Newark  two  members. 
This  is  the  last  exercise  of  this  prerogative,  and  it  did  not 
pass  quite  unquestioned.  For  a  long  time  past  the  commons 
had  looked  jealously  on  this  power.  They  had  claimed  to 
themselves  the  right  of  deciding  whether  a  borough  had  the 
right  to  send  members — and  most  of  the  additions  made  by 
Charles  I  to  the  House  were  by  way  of  reviving  boroughs 
which,  according  to  the  decision  of  the  House,  had  once 
returned  members,  but  had  discontinued  the  practice  of  sending 
them.  The  right  to  send  members  was  now  becoming  a 
coveted  right,  and  boroughs  sought  to  show  that  they  had 
exercised  this  right  in  remote  times.  The  representation  of 
the  two  Universities  is  due  to  James  I.  The  prerogative  of 
increasing  the  number  of  borough  members  was  never  taken 
away — but  it  was  last  exercised  in  favour  of  Newark  in  1677 
— and  after  the  Restoration  the  House  of  Commons  would 
have  resented  its  ekercise:  though  it  is  curious  to  observe  that 
the  excellent  whig,  John  Locke,  agreed  that  if  the  House  would 
not  reform  itself,  the  king  might  reform  it1.  Thus  the  number 
of  members  became  finally  fixed  at  5 1 3 ;  24  for  Wales,  80  for  the 
English  counties,  4  for  the  Universities,  the  rest  for  the  English 
boroughs ;  these,  with  the  45  Scottish  members  added  under 
Anne,  and  the  100  Irish  members  added  under  George  III, 
brought  up  the  total  to  658.  This  was  the  number  in  1832. 

Though  from  the  legal  point  of  view  this  is  no  precedent, 
still  we  do  well  to  observe  that  in  the  parliament  of  1656,  the 
third  of  Cromwell's  parliaments,  Scotland  and  Ireland  are 
represented2.  It  consists  of  459  members:  375  English,  24 
Welsh,  29  Scottish,  31  Irish. 

The  electoral  qualifications  remain  what  they  have  been.  In 
the  counties  the  electors  are  still  the  forty-shilling  freeholders. 
In  the  boroughs  there  is  the  utmost  variety.  On  the  whole, 
the  tendency  has  been  towards  vesting  the  right  to  elect  repre- 
sentatives in  an  oligarchic  governing  body.  In  many  cases 
the  crown  procured  a  surrender  of  an  old  charter  and  granted 

J  Civil  Government,  c.  XIII. 

2  Irish  and  Scottish  members  sat  in  the  Barebones  Parliament  (1653)  an^ 
again,  in  accordance  with  the  provisions  of  the  Instrument  of  Government,  in  the 
Parliament  of  1654, 


IV  Borough  Charters  291 

a  new.  Under  Charles  II  a  plan  was  conceived  for  hastening 
this  process.  An  attack  was  made  on  the  charters  of  the  city 
of  London,  and  they  were  declared  to  be  forfeited.  It  was 
a  principle  of  law  that  if  a  charter  was  abused  it  was  forfeited, 
and  it  was  alleged  that  the  citizens  of  London  had  in  some 
not  very  important  respects  abused  their  corporate  powers. 
Their  charter  was  declared  to  be  forfeited.  In  terror  at  this 
judgment  many  of  the  boroughs  of  England  surrendered  their 
charters,  and  received  new  charters  vesting  the  right  of  election 
in  governing  bodies  nominated  by  the  king1.  By  these  means 
James  II  obtained  a  very  subservient  parliament.  After  the 
Revolution — in  1690 — the  judgment  against  the  city  of 
London  was  declared  void  by  statute.  Some  of  the  boroughs 
which  had  surrendered  their  charters  and  taken  new  ones,  got 
back  their  old  charters  on  the  ground  that  the  surrender  was 
unlawful,  but  this  was  not  always  the  cas£ — in  some  instances 
the  surrenders  were  adjudged  lawful.  A^pgether,  therefore, 
the  constitution  of  very  many  boroughs  had^come  oligarchic. 
After  the  Revolution  many  of  them  fall  un^jsj:he  influence  of 
great  land-owners  and  become  pocket  boroug^  Already  in 
William's  day  the  distribution  of  seats  presents  many  of  those 
anomalies  which  are  abolished  in  1832.  Shortly  after  the 
Revolution  Locke  wrote  thus — 'We  see  the  bare  name  of 
a  town,  of  which  there  remains  not  so  much  as  the  ruins, 
where  scarce  so  much  housing  as  a  sheep-cote,  or  more 
inhabitants  than  a  shepherd  is  to  be  found,  sends  as  many 
representatives  to  the  grand  assembly  of  law  makers  as  a  whole 
county,  numerous  in  people  and  powerful  in  riches.  This 
strangers  stand  amazed  atV 

The  power  of  determining  all  questions  as  to  contested 
elections,  the  House  of  Commons  has  now  got  into  its  own 
hand — and  it  jealously  resents  any  interference  by  the  king, 
the  House  of  Lords,  or  the  courts  of  law.  Too  often  its 
decision  is  simply  the  result  of  a  party  division. 

As  to  the  qualification  of  those  elected.  The  act  of 
Henry  V  is  still  on  the  statute  book,  and  it  requires  that  the 
knights  and  burgesses  shall  be  resident  in  the  shires  and  towns 

1  Porritt,  vol.  I,  pp.  393—6,  399—405. 
*  Civil  Government)  c.  XIII. 


292  Constitutional  History  PERIOD 

which  they  represent;  it  will  not  be  repealed  until  1774,  but 
since  the  days  of  Elizabeth  it  has  been  habitually  disregarded. 
There  is  no  property  qualification — though  we  are  on  the  eve 
of  getting  one — for  in  1710  (9  Anne,  c.  5)  a  statute  is  passed 
providing  that  a  knight  of  the  shire  must  have  an  estate  of 
land  worth  £600  per  annum,  a  burgess  one  worth  ^300. 

Of  late  there  has  been  a  great  noise  against  the  number  of 
place- men  in  parliament — at  present  there  is  no  law  against 
them — but  the  Act  of  Settlement  (1700,  12  and  13  Will.  Ill, 
c.  2)  has  lately  provided  '  that  so  soon  as  the  House  of  Hanover 
shall  come  to  the  throne,  no  person  who  has  an  office  or  place 
of  profit  under  the  king,  or  receives  a  pension  from  the  crown, 
shall  be  capable  of  serving  as  a  member  of  the  House  of 
Commons/  This  momentous  clause  never  came  into  force: 
it  was  repealed  in  17^5  before  the  House  of  Hanover  came  to 
the  throne.  Had  it/ever  come  into  play  it  must  have  altered 
the  whole  history -tf  the  House  of  Commons;  no  minister  of 
the  king  would  ,  Jeer  have  been  able  to  sit  there.  Macaulay 
says  that  the  >  tholt  would  have  been  to  make  the  House  of 
Lords  the  mc3raugust  of  senates,  while  the  House  of  Commons 
would  have  become  little  better  than  a  vestry1.  The  plan  in 
1707,  by  a  statute  which  still  is  the  fundamental  law  on  this 
subject,  was  that  the  acceptance  of  an  old  office,  i.e.,  one 
created  before  25  October,  1705,  should  vacate  the  seat,  but 
that  the  office  holder  should  be  capable  of  reelection,  while  on 
the  other  hand  no  holder  of  a  new  office,  an  office  created 
since  that  date,  should  be  capable  of  sitting  at  all2.  The  clause 
in  the  Act  of  Settlement,  to  which  we  have  just  referred,  is  a 
good  reminder  that  our  modern  system  of  ministerial  govern- 
ment is  modern  ;  in  1700,  let  us  repeat  it,  parliament  ordains 
that  there  shall  be  no  ministers  in  the  House  of  Commons. 

C.     Frequency  and  Duration  of  Parliaments. 

And  now  as  to  the  frequency  of  parliaments.  It  is 
impossible  to  speak  in  general  terms ;  each  parliament  of  the 
time  that  we  are  surveying  has  its  own  very  peculiar  history. 
The  first  parliament  of  Charles  I  met  on  17  May,  1625,  and 

1  History  of  England,  c.  XIX. 

*  New  offices  have  however  been  created  by  subsequent  statutes  to  which  this 
disability  does  not  attach. 


IV  Frequency  of  Parliaments  293 

was  dissolved  on  12  August,  the  commons  protesting,  and  no 
grant  of  tonnage  and  poundage  having  been  made.  The  second 
parliament  met  on  6  February,  1626,  and  was  dissolved  on 
15  June  without  passing  a  statute;  the  king  was  at  issue  with 
both  Houses  as  to  their  privileges.  The  third  parliament 
met  on  17  March,  1628,  and  sat  until  26  June,  when  it  was 
prorogued.  It  sat  a  second  time  on  20  January,  1629,  and 
was  dissolved  on  10  March.  To  its  first  session  we  owe  the 
Petition  of  Right.  Then  for  hard  on  eleven  years  there  is  no 
parliament.  The  fourth  (a  short)  parliament  met  on  13  April, 

1640,  and  was  dissolved  on  5  May — after  less  than  a  month; 
the  king  had  got  no  supply.     On  24  September  Charles  had 
recourse  to  a  magnum  concilium  of  peers  held  at   York — 
the  last  occasion  on  which  such  a  body  has  met — but  got 
nothing  from  it,  save  advice  to  summon  a  parliament.     One 
was  summoned;  it  met  on  3  November,  1640,  and  became 
the  Long  Parliament.     We  may  say  that  it  remained  in  legal 
being  for  twenty  years,  that  it  was  never  lawfully  dissolved  until 
in  1660  a  statute  of  the  Convention  Parliament  declared  its 
dissolution.     But  we  may  rapidly  trace  its  history.    It  met  on 
3  November,  1640,  and  sat  on  steadily  until  22  August,  1642, 
when  the  king's  standard  was  raised  at  Nottingham,  and  long 
afterwards.     In  the  meantime,  however,  before  the  war  broke 
out,  not  only  had  it  procured  the  attainder  of  Strafford,  the  ex- 
clusion of  the  bishops  from  the  House  of  Lords,  the  abolition 
of  the  Star  Chamber;  but  further  two  acts  were  passed  which 
particularly  concern  us  here.    In  the  first  place  on  1 5  February, 

1641,  the  royal  assent  was  obtained  to  the  Triennial  Actl 
(16  Car.  I,  c.  i).     This  enacts  that  a  parliament  shall  be  held 
in  every  third  year;  if  the  Chancellor  does  not  issue  writs,  then 
the  peers  are  to  meet  and  issue  writs  for  the  election  of  the 
representatives  of  the  commons,  and  if  the  peers  make  default, 
then  the  sheriffs  and  mayors  are  to  see  to  the  election.     No 
parliament,  again,  was  to  be  dissolved  or  prorogued  within 
fifty  days  after  its  meeting.     The  old  statutes  of  Edward  III 
which  directed  that  a  parliament  should  be  held  in  every  year 
or  more  often  if  need  be  were  not  repealed1.     But  a  more 

1  Gardiner,  Constitutional  Documents  of  tke  Puritan  Revolution,  2nd  ed., 
PP-  *44— 55- 


294  Constitutional  History          PERIOD 

momentous  concession  was  extorted  on  17  May,  1641  ;  the 
king  gave  his  assent  to  a  bill  which  declared  that  the  present 
parliament  shall  not  be  dissolved  unless  it  be  by  act  of 
parliament  to  be  passed  for  that  purpose;  nor  shall  it  be 
prorogued  or  adjourned  unless  by  act  of  parliament,  and  the 
houses  shall  not  be  adjourned  unless  by  themselves  or  their 
own  order.  Thus  the  parliament  provided  that  it  should 
continue  to  exist  during  its  own  good  pleasure.  It  continued 
sitting  during  the  Civil  War,  after  1649  as  a  parliament  without 
lords.  On  7  December,  1648,  the  army  which  had  become 
masters  of  England,  violently  expelled  (Pride's  purge),  or  as 
the  phrase  went,  'secluded'  the  majority  of  the  house,  a 
hundred  and  forty-three  members  of  the  Presbyterian  party. 
The  Rump  that  was  left  at  once  proceeded  to  erect  a  court  of 
justice  for  the  king's  trial.  This  Rump  of  the  Long  Parliament 
went  on  sitting  until  \2O  April,  1653— in  1651  it  had  voted 
that  it  would  continue  sitting  until  November,  1654 — but 
meanwhile  Cromwell  put  an  end  to  its  prating. 

On  4  July,  1654,  there  appears  the  collection  of  persons 
known  as  the  Little  Parliament  or  Barebone's  parliament — 
140  persons,  not  elected  by  the  country,  but  nominated  by  the 
council  of  officers;  it  sat  until  12  December,  and  then  dissolved 
itself.  On  3  September,  1654,  met  the  second  of  Cromwell's 
parliaments,  if  we  reckon  the  Barebone's  assembly  as  the 
first ;  it  was  a  body  of  400  elected  members,  elected  according 
to  a  scheme  settled  by  the  Long  Parliament  in  1650;  there 
was  some  redistribution  of  seats,  and  the  county  franchise  was 
extended  to  any  persons  having  real  or  personal  property  to 
the  value  of  ^200.  On  22  January,  1655,  Cromwell  dissolved 
this  body.  His  third  parliament  met  on  17  September,  1656 ; 
it  offered  him  the  kingly  title  which  he  refused ;  it  instituted 
an  upper  house  consisting  of  his  nominees,  and  then  fell 
quarrelling  as  to  whether  this  was  a  House  of  Lords.  On 
4  February,  1658,  he  dissolved  it ;  on  3  September  he  died. 
Power  had  been  given  him  to  appoint  a  successor  to  the  office 
of  Lord  Protector,  and  it  seems  that  he  had  appointed  his  son 
Richard,  though  by  no  formal  instrument  On  27  January, 
1659,  a  parliament  met;  the  military  council  of  officers  could 
not  get  on  with  it,  and  on  22  April  Richard  dissolved  it  On 


IV  Triennial  Act  295 

7  May  the  officers  restored  the  Rump,  the  members  of  the 
Long  Parliament  not  excluded  in  1653  ;  again  they  were 
expelled,  and  again  they  were  restored — the  secluded  members 
returned.  On  16  March,  1660,  this  Long  Parliament  passed 
a  bill  declaring  itself  dissolved,  and  taking  order  for  the 
holding  of  a  new  parliament  on  25  April 

That  parliament  was  the  Convention  Parliament,  and  of 
some  of  its  doings  we  have  already  spoken.  With  the  king's 
assent,  for  Charles  was  restored  in  May,  it  passed  an  act 
declaring  the  dissolution  of  the  Long  Parliament ;  it  was 
dissolved  on  29  December,  1660.  Charles's  second  parliament 
met  on  8  May,  i66i,and  was  not  dissolved  until  31  December, 
1678,  having  thus  sat  between  seventeen  and  eighteen  years. 

During  this  time  it  held  sixteen  sessions.  Really  it  was  a 
much  longer  parliament  than  what  is  called  the  Long  Par- 
liament— which  had  not  sat  thirteen  yrjars  before  Cromwell 
packed  it  off,  though  it  maintained  a  n6tional  existence  for 
seven  years  longer.  On  6  March,  1679,  Charles's  third 
parliament  met ;  it  was  prorogued  in  May,  dissolved  in  July. 
His  fourth  parliament  met  on  October  17  in  the  same  year, 
but  did  not  sit  for  business  until  October,  1680;  it  sat  until 
January,  1681,  when  it  was  dissolved.  The  fifth  and  last  is 
the  Oxford  Parliament,  which  met  on  21  March,  1681 :  sat 
but  for  a  week  and  was  then  dissolved.  From  March,  1681, 
until  his  death  in  February,  1685,  Charles  reigned  without  ^ 
parliament.  But  we  must  go  back  for  a  moment  We  have 
seen  that  the  first  act  of  the  Long  Parliament  (16  Car.  I,  c.  i) 
was  a  Triennial  Act  (1641),  which  provided  machinery  for  the 
assembling  of  a  parliament  once  in  every  three  years :  if  the 
king  neglected  to  summon  it,  it  would  meet  without  his 
summons.  In  1664  this  act  was  repealed  as  being  in  deroga- 
tion of  the  king's  just  rights.  Instead  thereof  it  was  enacted 
(16  Car.  II,  c.  i)  that  the  sitting  and  holding  of  parliament 
shall  not  be  intermitted  or  discontinued  above  three  years  at 
the  most — but  no  machinery  was  provided  for  the  assembling 
of  a  parliament  in  case  the  king  should  neglect  his  statutory 
duty  of  calling  one.  It  supersedes,  we  may  say,  though  it 
does  not  repeal  the  acts  of  Edward  III  as  to  parliament  being 
held  once  in  every  year,  or  more  often  if  need  be :  it  is  the 


296  Constitutional  History  PERIOD 

king's  statutory  duty  to  call  a  parliament  together  once  at 
least  in  every  three  years,  but  if  he  neglects  to  do  this 
there  is  no  lawful  manner  in  which  a  parliament  can  come 
together.  Twenty  years  afterwards  Charles  II,  as  we  have 
just  seen,  violated  the  act.  He  dissolved  the  Oxford  Parlia- 
ment in  March,  1681,  and  had  not  summoned  another  when 
he  died  in  February,  1685. 

James  held  but  one  parliament;  it  met  19  May,  1685, 
held  two  sessions  in  that  year,  was  prorogued  on  20  November, 
1685,  and  never  sat  again  for  business,  though  it  was  not 
dissolved  until  July,  1687. 

We  have  already  spoken  of  the  Convention  of  22  January, 
1689,  which  became  the  first  parliament  of  William  and  Mary. 
One  of  the  clauses  of  the  Declaration  of  Rights  incorporated 
in  the  Bill  of  Rights  declared  that  for  redress  of  grievances, 
and  for  the  amending,  strengthening  and  preserving  of  the 
laws,  parliaments  oi^ht  to  be  held  frequently.  The  Triennial 
Act  of  1664,  however,  was  left  standing.  The  second  parlia- 
ment met  on  20  May,  1690 ;  it  held  six  sessions  and  was 
dissolved  in  the  autumn  of  1695.  Meanwhile  it  had  passed 
another  Triennial  Act — carefully  to  be  distinguished  from 
the  acts  of  1641  and  1664.  It  was  passed  in  1694  (6  and  7 
William  and  Mary,  c.  2).  This  act  was  directed  not  so  much 
against  intermissions  of  parliament,  though  it  repeated  what 
twas  already  law,  namely,  that  a  parliament  shall  be  holden  once 
in  three  years  at  least,  but  against  long  parliaments :  no  parlia- 
ment is  to  endure  for  more  than  three  years — itjs  Jthen  to  die 
a  natural  death.  As  to  this  present  parliament,  it  is  to  cease 
on  I  November,  1696.  William  dissolved  it  when  it  was  just 
about  to  expire.  William  had  rejected  this  Triennial  Act  in 
1693  ;  this  is  one  of  the  last  instances  of  the  royal  assent 
being  withholden.  It  remained  in  force  until  the  Septennial 
Act  was  passed  in  1715  (i  Geo.  I,  st.  2,  c.  38).  William  met 
his  third  parliament  in  November,  1695  ;  it  sat  again  in  1696 
and  1697.  Another  met  in  1698,  and  sat  again  in  1699  and 
1700.  A  fourth  met  in  1701,  and  was  in  existence  on  3  March, 
1702,  when  the  king  died.  I  think  that  in  the  whole  course  of 
English  history  it  had  only  once  happened  that  a  reigning 
king  had  died  during  the  existence  of  a  parliament — he  was 


IV     Parliament  and  Demise  of  the  Crown   297 

Henry  IV1.  It  had,  however,  been  accounted  well-settled  law 
that  the  king's  death,  the  demise  of  the  crown,  would  dissolve 
parliament ;  just  as  it  would  deprive  the  judges  and  all  officers 
of  state  who  held  their  commissions  from  the  king  of  their 
powers.  But  shortly  before  William's  death,  in  1696,  an 
act  had  been  passed  to  obviate  this  evil  result — if  the  present 
king  dies  when  there  is  a  parliament,  it  is  to  continue  in 
existence  for  six  months,  unless  sooner  dissolved  by  his 
successor  ;  if  there  is  no  parliament  when  he  dies,  the  last 
parliament  is  to  come  together  and  be  again  a  parliament 
The  grave  possibility  of  a  disputed  succession  led  to  this  act 
It  applied  only  to  the  case  of  King  William;  in  1707  (6  Anne, 
0.41,  sec.  4)  the  rule  was  generalized.  In  1867  (30  and  31 
Vic.  c.  1 02,  sec.  51)  it  was  enacted  that  the  demise  of  the  crown 
should  have  no  effect  on  the  duration  of  parliament,  and  thus 
the  rule  as  to  six  months  was  abolished.  m 

It  will  be  needless  hereafter  to  speak  ot  <he  actual  duration 
of  parliaments.  Since  the  Revolution  the  principle  that 
parliament  shall  sit  in  every  year,  has  been  secured  by  very 
efficient  means  which  will  soon  come  before  us.  This  is  one 
of  the  great  results  of  the  period  which  is  now  under  our 
consideration.  Of  the  other  results  let  us  take  a  brief  review 
under  six  heads. 

D.     The  Question  of  Sovereignty. 

The  first  question  which  a  student  of  modern  jurisprudence 
is  likely  to  ask  on  turning  to  consider  a  political  constitution 
is,  Where  is  sovereignty?  I  have  before  now  given  my 
reasons  why  we  should  not  ask  this  question  when  studying 
the  Middle  Ages — why  we  should  understand  that  no  answer 
can  be  given. 

Gradually,  and  as  a  result  of  long  continued  struggles,  the 
question  emerges,  and  it  is  not  settled  without  bloodshed. 

In  the  middle  of  the  century  Hobbes,  in  his  vigorous 
writings,  had  sharply  stated  the  theory  that  a  sovereign  there 
must  be — some  man  or  body  of  men  whose  commands  are  laws 
— and  though  Hobbes  had  no  great  following,  still  this  theory 
told  on  the  world.  Now  I  think  that  at  the  outset  of  our 

1  Henry  Vill  and  James  I  died  during  the  existence  of  a  parliament. 


298  Constitutional  History  PERIOD 

period  there  were  three  claimants  for  sovereignty,  (i)  the  king, 
(2)  the  king  in  parliament,  (3)  the  law.  As  a  matter  of  history 
the  claims  of  king  and  parliament  certainly  seem  to  us  the 
best  founded.  We  have  seen  that  the  practical  despotism  of 
the  Tudors  had  laid  a  terrible  emphasis  upon  the  enormous 
powers  of  parliament — there  was  nothing  that  parliament 
could  not  do — it  could  dissolve  the  ancient  dual  constitution 
of  church  and  state,  it  could  place  the  church  under  the  king, 
it  could  alter  the  religion  of  the  land,  it  could  settle  the  royal 
succession,  it  could  delegate  legislative  powers  to  the  king,  it 
could  take  them  away  again.  I  think  that  the  statesmen  of 
Elizabeth's  reign,  witness  Sir  Thomas  Smith,  had  distinctly 
held  that  king  in  parliament  was  absolutely  supreme,  above  the 
king  and  above  the  law.  Still  for  the  king  there  was  a  great 
deal  to  be  said— m^re,  as  I  think,  than  modern  writers  are 
inclined  to  allow,  a^id  this  even  apart  from  those  theories  of 
divine  right  which  were  generally  held  by  the  monarchical 
party.  Those  theories,  which  became  current  under  James  I, 
we  must  leave  on  one  side ;  they  belong  rather  to  the  domain 
of  political  philosophy,  than  to  that  of  constitutional  law.  It 
is  more  within  our  scope  to  observe  that  it  must  have  been 
a  hard  feat  to  conceive  of  sovereignty  as  vested  in  the  parlia- 
mentary assembly.  Consider  how  very  much  that  assembly 
depends  for  its  constitution,  for  its  very  existence,  on  the  king's 
will.  It  comes  when  he  calls  it,  it  disappears  when  he  bids  it 
go ;  he  makes  temporal  lords  as  he  pleases,  he  makes  what 
bishops  he  pleases,  he  charters  new  boroughs  to  send  repre- 
sentatives. After  all,  is  not  this  body  but  an  emanation  of  the 
kingly  power?  The  king  does  well  to  consult  a  parliament — 
but  is  this  more  than  a  moral  obligation,  a  dictate  of  sound 
policy  ?  As  to  old  acts  of  the  fourteenth  century,  a  question 
of  sovereignty  cannot  possibly  be  decided  by  an  appeal  to 
ancient  documents. 

The  high-water  mark  of  this  theory  is  to  be  found  in  some 
of  the  judgments  delivered  in  the  Ship  Money  case.  I  will 
read  a  few  sentences. 

Crawley,  J.  *  This  imposition  without  parliament  apper- 
tains to  the  king  originally,  and  to  his  successor  ipso  facto  if 
he  be  a  sovereign  in  right  of  his  sovereignty  from  the  crown. 


IV  Sovereignty  299 

You  cannot  have  a  king  without  these  royal  rights,  no  not  by 
act  of  parliament. 

Berkley,  J.  Where  Mr  Holborne  supposed  a  fundamental 
policy  in  the  creation  of  the  frame  of  this  kingdom,  that  in 
case  the  monarch  of  England  should  be  inclined  to  exact  from 
his  subjects  at  his  pleasure,  he  should  be  restrained  for  that 
he  could  have  nothing  from  them,  but  upon  a  common  consent 
in  parliament  :  he  is  utterly  mistaken  herein.  The  law  knows 
no  such  king-yoking  policy.  The  Jlaw  itself^  js_an  oldLjind 
trystxjseryant  o>f  ^the  Jcjng*s|  |t  is  his  instrument  or  means 
that  he  useth  tp_goyern  his  people  by.  I  never  read  nor 
heard  thatj^^vas  \jrex^  but  it  js.  common  and  most  true  that 


Vernon,  J.  The  king  pro  bono  publico  may  charge  his 
subjects  for  the  safety  and  defence  of  the  kingdom,  notwith- 
standing any  act  of  parliament,  and  a  statute  derogatory  from 
the  prerogative  doth  not  bind  the  king  and  the  king  may 
dispense  with  any  law  in  cases  of  necessity. 

Finch,  C.  J.  No  act  of  parliament  can  bar  a  king  of  his 
regality,  as  that  no  land  should  hold  of  him  ;  or  bar  him  of  his 
allegiance  of  his  subjects  ;  or  the  relative  on  his  part  as  trust 
and  power  to  defend  his  people  ;  therefore  acts  of  parliament 
to  take  away  his  royal  power  in  the  defence  of  the  kingdom  are 
void  ;  they  are  void  acts  of  parliament  to  bind  the  king  not  to 
command  the  subjects,  their  persons  and  goods,  and  I  say  their 
money  too  ;  for  no  acts  of  parliament  make  any  difference1.' 

Now  this  goes  far  indeed,  but  as  it  seems  to  me,  from 
a  lawyer's  point  of  view,  the  fatal  flaw  in  it  is  that  it  does  not 
go  far  enough.  If  the  judges  had  grasped  the  modern  notion 
of  sovereignty,  the  notion  which  Hobbes  was  just  giving  to  the 
world  —  had  said  the  question  really  is,  Who  is  sovereign  ? 
had  answered  boldly,  '  The  king  is  sovereign,  it  is  to  him  (not 
to  him  and  parliament)  that  this  nation  renders  that  habitual 
obedience  which  is  the  fact  which  constitutes  the  relation  of 
subject  and  sovereign  ;  this  is  clear  from  the  nation's  prolonged 
acquiescence  in  breaches  by  the  king  of  the  plain  words  of 
statutes  ;  no  act  of  parliament  binds  or  can  bind  him,  no,  not 

1  State  Trials,  13  Charles  I,  1637,  vol.  ill,  pp.  826—1315. 


300  Constitutional  History  PERIOD 

though  he  himself  assented  to  it  yesterday;  he  is,  in  short, 
a  perfectly  absolute  monarch  '—had  they  said  this,  it  would 
have  been  difficult  to  find  any  logical  flaw  in  their  judgments. 
The  law,  it  might  be  said,  cannot  determine  who  is  sovereign. 
But  the  judges,  bold  though  their  language  was,  shrank 
from  this  assertion,  an  assertion  which  must  have  hurried  on 
the  Civil  War.  They  spoke  of  cases  of  necessity — the  necessity 
of  levying  money  for  the  defence  of  the  realm — they  admitted 
that  the  king  could  not  of  his  own  will  impose  a  tax  to  be 
spent  on  his  personal  pleasures,  they  spoke  of  certain,  or  rather 
some  not  very  certain,  royal  rights  as  beyond  the  power  of 
statute.  '  Acts  of  parliament/  even  Finch  admitted,  '  may  take 
away  flowers  and  ornaments  of  the  crown,  but  not  the  crown 
itself1/  This  makes  their  position  very  weak — who  is  to  decide 
what  is  an  ornament  and  what  a  substantial  part  of  the  crown 
— the  notion  of  a  coVistitution  above  both  king  and  parliament, 
limiting  to  royal  4cts  a  proper  sphere,  limiting  to  statutes 
a  proper  sphere,  was  nowhere  to  be  found  expressed  in  any 
accurate  terms,  and  would  satisfy  neither  king  nor  nation. 
The  contest  was  to  be  between  the  sovereignty  of  a  king,  and 
the  sovereignty  of  a  king  in  parliament  We  know  how  the 
contest  was  decided — by  the  Civil  War  and  the  Revolution. 
Of  course,  however,  so  long  a<5  Jacobitism  survived,  and 
certainly  it  survived  in  1745,  there  survived  the  doctrine  that 
the  title  of  the  king,  and  some  at  least  of  the  powers  of  the 
king,  are  above  statute.  The  fatal  theoretic  fault  of  Jacobitism 
was  that  it  could  not  say,  dared  not  say,  the  king  is  utterly 
above  all  law,  law  is  but  the  king's  command. 

I  have  said  that  there  was  a  third  claimant  for  sovereignty, 
namely  the  law.  If  the  lawyers  of  James  I's  day  had  been 
forced  to  consider  Hobbes's  theory,  they  would,  I  think,  have 
denied  the  necessity  for  there  being  any  man  or  body  of  men 
above  the  law.  This,  so  far  as  one  can  discover  it,  was  the 
position  of  the  great  typical  lawyer  Coke.  It  is  always 
difficult  to  pin  Coke  to  a  theory,  but  he  does  seem  distinctly 
to  claim  that  the  common  law  is  above  statute,  and  above 
prerogative — it  assigns  a  place  to  both  king  and  parliament, 

1  In  the  Ship  Money  case,  State  Trials,  vol.  in,  p.  1235,  Broom,  Constitutional 
Law>  p.  363. 


IV  Coke' s  Theory  301 

and  keeps  them  in  it  Coke  distinctly  claims  that  the  judges 
may  hold  a  statute  void,  either  because  it  is  against  reason 
and  natural  law,  or  because  it  trenches  on  the  royal  preroga- 
tive1. He  alleges  precedents  for  this — cases  in  which  statutes 
have  been  held  void.  1  do  not  think  that  they  bear  him  out. 
I  do  not  think  that  the  judges  of  the  Middle  Ages  had 
considered  themselves  free  to  question  the  validity  of  a  statute 
on  the  ground  of  its  being  against  natural  law.  As  to  the 
prerogative,  Coke's  case  was  somewhat  stronger;  and,  as 
already  said,  I  take  it  to  have  been  the  lawyer's  doctrine  of 
James's  time,  that  the  courts  had  power  to  decide  that  a  statute 
was  not  law.  If  this  theory  had  been  generally  accepted  the 
judges  would  have  become  the  ultimate  lawgivers  of  the 
realm — in  declaring  law  they  would  have  made  law,  which  they 
would  have  upheld  *  even  against  statute.  They  did  not 
expressly  claim  legislative  power,  they  didy  not  even  conceive 
that  this  was  their  claim  :  they  claimed  to  declare  that  law — 
law,  common  law,  natural  law  (and  this  was,  &s  we  have  seen, 
the  old  theory)  had  an  existence  of  its  own,  independent  of  the 
will  of  man,  even  perhaps  of  the  will  of  God.  The  difficulty 
before  this  theory  was  that  the  judges  could  not  point  out  the 
limits  to  the  power  of  statute  with  any  reasonable  accuracy. 
A  statute  might  take  away  flowers  and  ornaments  of  the  crown, 
but  not  the  crown  itself.  Such  language  is  far  too  vague  to 
become  a  constitutional  theory,  and  looking  back  at  the  statute 
book  of  the  fourteenth,  fifteenth  and ,  sixteenth  centuries,  it 
was  indeed  difficult  to  find  any  matter  with  which  parliament 
had  not  meddled.  The  vigorous  legislation  of  our  medieval 
parliaments  had  rendered  any  theory  of  law  above  king,  above 
king  and  parliament,  an  unworkable  doctrine.  It  soon  perished; 
year  by  year  events  showed  that  the  struggle  lay  between 
sovereignty  of  king,  and  sovereignty  of  king  in  parliament 
A  poor  relic  of  the  theory  lives  on  in  Blackstone — the  judges, 
he  seems  to  think,  might  hold  a  statute  void  if  it  contravened 
the  law  of  nature,  but  by  Blackstone's  day  this  had  become  an 
impracticable  speculative  tenet,  and  we  may  fairly  say  that  it 
was  destroyed  by  Bentham.  However,  let  us  remember  that 
Coke  held  it 

1  8  Rep,  118. 


302  Constitutional  History  PERIOD 


E.     Legislation* 

We  may  then  regard  the  seventeenth  century  as  finally 
settling  the  sovereignty  of  England  in  king  and  parliament. 
But  we  must  watch  this  process  more  in  detail :  and  we  will  start 
with  the  ordaining,  dispensing  and  suspending  powers  which 
the  kings  have  claimed.  We  have  seen  that  under  James  I  the 
judges,  who  were  no  enemies  to  the  prerogative,  had  held  that 
a  royal  ordinance  or  proclamation  could  have  but  an  extremely 
limited  force — it  could  create  no  new  offence — it  could  simply 
be  used  as  a  public  announcement  of  the  law,  an  intimation 
that  the  government  was  going  to  enforce  the  law.  Here  then 
the  common  law  as  declared  by  the  judges  was  against  the 
king — but  practicably  so  long  as  the  Court  of  Star  Chamber 
existed,  the  last  weird  on  the  matter  flid  not  rest  with  the 
judges:  that  couyt  would,  and  did,  enforce  proclamations.. 
The  proclamations  of  Charles  I  were  far  more  numerous  than 
those  of  his  fatV^r.  Prices  were  fixed  by  proclamation  ;  houses 
were  demolished,  shops  were  shut  in  order  that  the  new 
cathedral  of  ot  Paul  might  appear  to  better  advantage ;  all 
persons  who  had  houses  in  the  country  were  directed  to  leave 
London.  On  5  July,  1641,  the  act  was  passed  which  abolished 
the  Court  oT  Star  Chamber,  Jancl  with  it  fell  the  power  o? 
enforcing  proclamations.  OneHnds  it  said  in  later  law  books, 
in  accordance  with  the  opinion  of  the  judges  of  James  I,  that 
an  offence  may  be  aggravated  by  being  committed  against 
a  royal  proclamation.  This  doctrine  would  seem  to  hold  even 
in  our  own  day  :  a  judge  in  passing  sentence  might  take  into 
consideration  the  fact  that  the  offence,  riot,  let  us  say,  or 
unlawful  assembly,  had  been  publicly  proclaimed  an  offence 
by  the  king :  but  obviously  a  power  of  issuing  such  proclama- 
tions is  not  of  first-rate  importance. 

With  regard  to  the  dispensing  and  suspending  powers, 
I  can  refer  you  to  Sir  William  Anson1.  The  two  powers  are 
in  theory  distinct.  Our  law  might  give  to  the  king  power  to 
dispense  with  statutes  in  favour  of  individuals  specially  named 
by  him,  and  yet  might  well  deny  him  the  power  of  suspending 

1  Law  and  Custom  of  the  Constitution)  Part  I,  Parliament^  jrd  ed.,  pp.  311—19. 


IV  The  Dispensing  Power 

a  law  so  that  persons  in  general  might  treat  it  as  being  no. 
existent.  The  claim  to  the  greater  power  seems  to  have  grown 
out  of  the  claim  to  the  lesser  power,  and  the  theory  established 
at  the  Revolution  by  the  Bill  of  Rights  is  that,  while  the  sus- 
pending power  had  never  had  any  legal  existence,  the  king  had 
lawfully  enjoyed  a  certain,  or  rather,  perhaps  we  ought  to  say, 
an  uncertain  power  of  dispensation.  It  was  extremely  difficult 
even  for  the  most  ardent  parliamentarians  to  deny  that  a 
dispensing  power  had  existed,  though  as  to  the  definition  of 
its  lawful  limits  there  was  a  very  great  uncertainty.  From 
a  very  early  time  the  king  had  taken  on  himself  to  dispense 
with  statutes.  In  theory  this  power  was  closely  connected 
with  that  power  of  pardoning,  with  which  our  king  is  still 
entrusted.  We  may  indeed  readily  distinguish  between  the 
two — pardon  relates  to  something  that  h?s  already  been  done, 
dispensation  to  something  that  is  to  be  done  in  the  future. 
Also  to  this  day  the  queen,  by  her  Attorney-General,  has 
power  to  stop  a  criminal  prosecution  by  entering  a  nolle 
prosequi.  Every  proceeding  by  indictment  is  in  legal  theory 
a  proceeding  by  the  queen,  and  if  the  queen  refuses  to 
prosecute,  then  the  prosecution  comes  to  an  end.  It  should 
be  remembered  also  that  many  of  the  medieval  statutes 
imposed  as  punishments  for  offences  not  reaching  the  degree 
of  felony,  fines  and  forfeitures  of  which  the  king  had  the  profit 
It  should  be  remembered  also  that  a  distinction  between  the 
king's  public  capacity  and  his  private  capacity,  a  distinction 
between  the  king  and  the  crown  is  pretty  modern  and  foreign  to 
the  Middle  Ages.  The  royal  revenue  and  the  national  revenue 
are  all  one ;  there  is  no  such  thing  as  national  land,  the  king's 
lands  are  simply  the  king's  lands,  no  matter  by  what  title  they 
became  his.  These  things  being  remembered,  it  will  not  seem 
strange  that  the  king  should  have  exercised  a  power  of 
dispensing  with  penal  statutes.  If  any  one  breaks  such  a 
statute,  who  is  wronged  ?  The  king ;  it  is  for  him  to  prosecute, 
and  the  fines  and  penalties  will  be  his.  May  we  not  say, 
Volenti  non  fit  injuria ;  if  the  king  chooses  to  say  in  advance 
that  he  will  not  consider  himself  wronged,  that  he  will  not 
exact  those  penalties  which  the  statutes  have  given  him, 
what  harm  is  there  in  this  ?  This  power  then  of  dispensing 


Constitutional  History  PERIOD 

.ith  statutes,  seems  to  have  provoked  but  little  protest  before 
the  seventeenth  century.  In  that  century  no  lawyer,  so  far  as 
I  am  aware,  doubted  its  existence,  and  the  Bill  of  Rights 
admitted  that  in  some  instances  the  exercise  of  it  had  been 
lawful.  Certain  lines  had  been  drawn.  It  was,  for  example,  a 
very  general  doctrine,  that  while  the  power  extended  to  what 
were  called  mala  quia  proliibita^  it  did  not  extend  to  mala  in 
se\  The  king  might  permit  a  man  to  do  what  would  not  have 
been  unlawful  but  for  the  statute;  he  could  not  permit  him  to 
do  what  apart  from  any  prohibition  would  be  wicked  ;  might 
dispense  with  such  a  statute  as  those  which  forbad  the  holding 
of  land  in  mortmain,  but  not  with  a  statute  which  fixed  a  pun- 
ishment for  larceny  or  murder.  Again  we  find  in  Coke  the 
doctrine  that  the  king  can  always  dispense  with  a  statute  which 
trenches  on  the  royi  1  prerogative,  yes,  even  though  the  statute 
itself  declares  tha/c  a  dispensation  shall  be  invalid.  Coke 
more  than  once  repeats  this  doctrine,  which  obviously  points 
to  prerogative  above  statute.  He  says  that  in  Henry  VI Ts 
day  it  was  decided  that  the  king  might  dispense  with  a 
statute,  providing  that  the  same  person  shall  not  be  sheriff 
for  more  than  a  year,  and  which  declared  that  a  dispensation 
to  the  contrary  should  be  invalid.  The  king,  by  his  preroga- 
tive, was  entitled  to  the  service  of  his  subjects  as  sheriffs  and 
so  forth;  no  statute  could  deprive  him  of  this.  The  Year  Book 
to  which  Coke  refers  does  not  seem  to  me  to  bear  him  out ; 
such,  however,  was  his  doctrine2.  It  is  only  under*  James  II 
that  we  hear  much  against  dispensations,  though  the  sale  of 
them  had  long  been  a  grievance.  James  seems  to  have  used 
them  with  a  settled  purpose  of  practically  annulling  the 
statutes  which  excluded  Papists  from  office.  In  this  the  court 
maintained  him,  and  doubtless  his  success  with  dispensations 
set  him  on  the  project  of  suspending  laws  in  a  direct  fashion. 
The  line  between  the  two  powers  that  he  claimed  can  be 
theoretically  marked — the  dispensation  applies  to  this  or  that 
individual,  a  suspending  of  the  statute  would  free  all  men,  and 
yet,  of  course,  the  dispensing  power  might  be  so  lavishly  used 
that  it  would  practically  operate  to  suspend  the  laws.  The 

1  Coke,  Case  of  Proclamations  XI  I,  Report  76. 

2  ib.  Case  of  Nan  Obstante  XII,  Report  18. 


IV  The  Declaration  o 


Bill  of  Rights  condemned  absolutely  the  suspending  pov 
its  condemnation  of  the  dispensing  power  was  qualified.  '11% 
pretended  power  of  dispensing  with  laws,  or  the  execution  oi 
laws  by  regal  authority,  as  it  hath  been  assumed  and  exercised 
of  late,  is  illegal/  It  would  have  been  going  too  far  to  declare 
that  every  exercise  of  the  dispensing  power  had  been  illegal  — 
many  private  rights  and  titles  must  have  been  acquired  on  the 
faith  of  dispensations.  No  attempt,  however,  was  made  to 
settle  what  dispensations  had  been  legal  :  the  words  used  were 
those  which  I  have  just  read.  As  to  the  future,  it  was  declared 
that  no  dispensation  by  non  obstante  of  any  statute  shall  be 
allowed,  '  except  a  dispensation  be  allowed  of  in  such  statute, 
and  except  in  such  cases  as  shall  be  specially  provided  for  by 
one  or  more  bill  or  bills,  to  be  passed  during  this  present 
session  of  parliament/  There  was  some  intention,  at  least 
among  the  lords,  of  passing  an  act  defining  in  what  cases 
dispensations  should  be  valid;  but  the  project  fell  to  the 
ground  —  and  so  the  words  about  a  bill  to  be  passed  in  the  then 
session  of  parliament,  never  took  effect.  '  This  is  the  last  of 
the  dispensing  power. 

As  to  the  suspending  power,  the  case  of  the  seven  bishops 
is  the  one  great  case.  The  question  came  but  incidentally 
before  the  court  James  II  had  issued  the  declaration  of 
indulgence.  By  his  royal  prerogative  (as  the  document  rims) 
he  declares  it  his  royal  will  and  pleasure  that  all  and  all 
manner  of  penal  laws  in  matters  ecclesiastical  be  immediately 
suspended.  The  clergy  were  required  to  read  this  declaration 
in  church  ;  the  bishops  petitioned,  and  their  petition  was  the 
*  seditious  libel'  for  which  they  were  tried.  Now  the  one 
precedent  which  could  be  produced  for  such  a  declaration,  was 
a  very  similar  declaration  published  by  Charles  II  in  1672  — 
a  declaration  of  indulgence  suspending  the  penal  laws.  But 
the  commons  had  protested,  and  Charles  had  been  compelled 
to  acknowledge  that  the  declaration  was  illegal.  This 
precedent,  therefore,  so  far  from  strengthening  the  case  for 
the  crown,  could  but  weaken  the  case  for  James  when  he 
followed  his  brother's  footsteps.  At  the  bishops'  trial  the 
advocates  make  the  best  of  their  very  bad  case,  but  very  bad 
it  certainly  was.  Two  judges  charged  the  jury  in  favour  of 

M.  20 


Constitutional  History  PERIOD 

~rown,  two  in  favour  of  the  bishops.  The  two  former 
to  have  had  nothing  to  say  for  the  declaration,  save  that 
/he  laws  were  the  king's,  and  that  he  might  do  what  he  liked 
*rith  them  ;  the  bishops,  as  we  all  know,  were  acquitted.  The 
Inly  ancient  record  that  was  produced  was  from  the  reign  of 
Richard  II,  and,  as  it  seems  to  me,  shows  very  plainly  that 
jeven  Richard  did  not  believe  himself  to  possess  any  such  vast 
''power  as  James  now  claimed1.  The  commons,  expressing  great 
confidence  in  the  king,  declared  that  the  king,  with  the  assent 
of  the  lords,  might  make  such  sufferance  touching  the  Statute 
of  Provisors  lately  passed,  as  should  seem  to  him  reasonable 
until  the  next  parliament ;  the  commons,  however,  were  to  be 
at  liberty  to  disagree  to  such  sufferance  in  the  next  parliament, 
protested  that  this  assent  was  a  novelty,  and  was  not  to  be 
drawn  into  consequence,  and  prayed  that  this  protest  might 
be  recorded  on  the  roll  of  the  parliament.  But  in  truth  one 
can  hardly  speak  df  this  declaration  otherwise  than  as  an  open 
and  determined  attempt  to  override  the  law.  The  Bill  of 
Rights  dealt  with  the  suspending  power  in  a  very  summary 
way.  'The  pretended  power  of  suspending  of  laws,  or  the 
execution  of  laws  by  regal  authority,  without  consent  of 
parliament,  is  illegal.'  This  also  is  reckoned  one  of  the  ways 
in  which  King  James  did  endeavour  to  subvert  and  extirpate 
the  Protestant  religion  and  the  laws  and  liberties  of  this 
kingdom :  namely  '  By  assuming  and  exercising  a  power  of 
dispensing  with  and  suspending  laws,  and  the  execution  of 
laws  without  the  consent  of  parliament ;  also  by  committing 
and  prosecuting  divers  worthy  prelates  for  humbly  petitioning 
to  be  excused  from  concurring  to  the  said  assumed  power/ 

F.  Taxation  and  Control  over  Finance. 
At  the  beginning  of  our  period  the  king  has  lately  achieved 
a  great  victory  in  the  financial  sphere.  The  Court  of  Exchequer 
has  decided  in  Bate's  case,  or  the  case  of  the  Impositions, 
that  thejdng  may  set  a  duty  on  imports.  Even  Coke  thinks 
that  he  may  do  this,  if  it  be  not  merely  for  the  purpose  of 
raising  a  revenue,  but  for  the  good  of  the  realm  ;  he  may 
prohibit  importation,  therefore  a  fortiori  he  may  tax  it. 

1  State  Trials^  xn,  375.     For  the  precedent,  Rot.  ParL  15  Ric.  II.    See  also 
'Broom,  Constitutional  Law,  2nd  ed.  pp.  406 — 506. 


IV  The  Petition  of  Right 

Parliament  protested,  and  grew  bolder  the  more  it  explored  the 
records  of  the  Middle  Ages.  None  the  less,  imposts  were  set 
on  all  goods,  and  were  collected.  When  Charles  I  met  his 
first  parliament,  the  commons  refused  to  make  that  grant  of 
tonnage  and  poundage  for  the  king's  life,  which  since  the  days 
of  Henry  V  had  been  usual ;  they  would  grant  it  for  but  one 
year ;  the  lords  would  not  pass  a  bill  for  so  restricted  a  grant ; 
the  king  dissolved  the  parliament,  and  continued  to  levy 
tonnage  and  poundage  and  other  imposts,  without  parliamen- 
tary sanction.  Out  of  his  second  parliament  he  could  get 
nothing  ;  it  was  set  upon  impeaching  Buckingham,  and  the 
king  was  set  on  saving  him.  Indirect  taxation  would  not 
now  suffice  to  meet  the  king's  wants.  He  had  recourse  to 
a  forced  loan — the  very  sums  which  divers  persons  were  to 
Mend*  him  were  specified.  Five  knights  who  refuse  to  contribute, 
J)ani£l,  Corbet,  Earl,  Heyeningham  and  Hampden,  were  com- 
mitted to  prison  by  the  council.  They  applied  for  a  habeas 
corpus,  but  could  not  get  delivered  ;  then  case,  famous  as 
Darnel's  case,  will  come  before  us  under  another  heading. 

In  March,  1628,  Charles  had  to  face  his  third  parliament, 
and  on  7  June  he  gave  his  assent  to  the  Petition  of  Right  which 
turned  it  into  a  statute.  The  first  of  its  four  points  concerns  us 
here.  It  recites  the  StqtutunideTallagic \jion,  Concedendp. 
th  statute  of  1350  against  forced  loans,  and  the  statute  of 
F  ;hard  III  against  benevolences ;  it  then  recites  that  commis- 
s  ns  have  issued,  by  means  whereof  people  have  been  required 

end  money — and  have  been  imprisoned  for  not  doing  so.  jt 

ys  thatjnojiianhereafter  be  compel  ledjx*.  makej)r_yield 
any'^ift,  loan,  benevolence,  tax,  or  su ch  like^  charge^jwjthoul^ 
common  consent  by_act  of  parliament,  Thisjrequest  the  king 
concedes.  _—— - 

As  against  anything  that  we  could  call  direct  taxation, 
these  words  are  clear  enough.  That  they  were  meant  to  strike 
at  the  customs  duties,  usually  known  as  the  impositions,  which 
the  king  was  levying  without  parliamentary  consent,  is  by  no 
means  clear1.  We  have  to  remember  that  the  Court  of 
Exchequer  had  pronounced  them  to  be  lawful.  As  a  matter 
of  fact  the  king  continued  to  levy  them — some,  Chambers  for 

1  Gardiner,  History  of  England,  vol.  vi,  pp.  326 — 9.      G.  W.  Prothero  in 
Eng.  Hist.  Rev.  vol.  VI,  p.  394 — 5  (April,  1891). 

20 — 2 


Constitutional  History  PERIOD 

instance,  refused  to  pay  and  were  imprisoned.  But  during  the 
long  interval  which  now  passed  without  a  parliament  (1629-40), 
the  king  had  recourse  to  yet  a  new  means  of  extorting  money. 
In  1634  he  required  the  seaports  and  maritime  counties  to 
furnish  him  with  ships.  Shortly  after  he  demanded  ship- 
money — money  by  way  of  composition  for  an  equipment  of 
ships — even  from  the  inland  counties.  Hampden  refused  to 
pay.  His  case  was  heard  by  all  the  twelve  judges  in  the 
Exchequer-Chamber1;  seven  decided  against  him,  five  were  in 
his  favour;  but  two  of  these  took  a  merely  technical  point; 
only  two,  Cooke  and  Hutton,  spoke  decidedly  against  the  king. 
Now  that  there  were  some  ancient  precedents  which  might  be 
forced  to  support  his  case,  could  hardly  be  denied  ;  but  to  say 
nothing  of  the  Confirmatio  Cartarum,  and  the  De  Tallagio> 
which  parliament  had  lately  treated  as  a  statute,  there  waflhe 
recent  Petition  of  Right  Whatever  might  be  said  of  tfife 
customs  duties,  clearly  this  ship-money  was  a  tax.  The 
majority  of  the  judges  would  not  contest  the  applicability  of 
these  statutes — they  fell  back  on  prerogative  above  statute. 
I  have  already  quoted  some  passages  from  their  judgments — 
practically  they  say  that  the  king  is  sovereign,  and  his 
commands  are  laws.  The  Long  Parliament  passed  an  act 
declaring  the  judgment  void  ;  the  king  gave  his  assent  on 
7  August,  1641.  It  declared  that  the  writs  for  collecting  sh  v 
money  were  unlawful,  and  it  condemned  the  practice  f 
obtaining  an  extra-judicial  opinion  from  the  judges,  a  pract'  ' 
which  had  been  resorted  to  in  Hampden's  case.  Meanwl 
the  parliament  had  at  last  made  grants  of  tonnage  c  . 
poundage,  and  the  king  had,  in  giving  his  assent,  declared  that 
he  was  abandoning  a  right  which  his  predecessors  had  ever 
considered  their  own.  The  act  declared  that  it  could  not 
lawfully  be  levied  without  parliamentary  grant.  At  the  same 
time  measures  were  passed  to  abolish  the  practice  of  forcing 
men  to  accept  knighthood,  or  pay  a  fine — a  practice  of  his 

1  There  were  two  Courts  of  Exchequer  Chamber,  one  created  by  3r  Ed.  Ill, 
st.  i,  c.  12  to  hear  appeals  from  the  Court  of  Exchequer,  the  other,  created  by 
27  Eliz.  c.  8  to  hear  appeals  from  the  Court  of  King's  Bench.  The  Courts  were 
practically  amalgamated  in  1830  by  n  Geo.  IV,  i  Will.  IV,  c.  70,  §  8.  The 
Jurisdiction  of  the  Exchequer  Chamber  was  finally  transferred  to  the  Court  of 
Appeal  in  1873.  36,  37  Viet.  c.  66,  §  18.  See  W.  S.  Holdsworth,  History  of 
English  Law>  vol.  I,  pp.  108 — 10,  413. 


IV  Appropriation  of  Supplies 

ancestors  which  Charles  had  revived — and  which  parliament 
might  well  call  useless  and  unreasonable,  but  could  hardly 
call  unlawful,  and  also  to  prevent  the  resuscitation  of  ancient 
forest  rights,  which  had  of  late  been  oppressively  used. 

On  the  whole  then,  the  victory  in  this  matter  of  taxation 
was  won,  so  far  as  such  a  victory  can  be  won.  by  acts  of 
parliament,  before  the  Civil  War  broke  out.  Charles  II  had  no 
need  to  raise  revenue  without  the  consent  of  parliament :  he 
was  liberally  supplied.  But  the  duties  which  had  been  granted 
to  him  died  with  him,  and  James  continued  to  levy  them  with- 
out parliamentary  authority  during  the  interval  between  his 
accession  and  the  meeting  of  his  parliament  That  interval 
was  but  two  months,  however,  and  his  parliament  was  ready 
to  condone  what  he  had  done.  However,  when  the  Revolution 
came,  this  was  reckoned  up  as  one  of  his  illegal  acts  in  the 
Declaration  of  Rights  and  the  Bill  of  Rights — he  had  levied 
money  by  pretence  of  prerogative  for  othor  time  and  in  other 
manner,  than  the  same  was  granted  by  parliament ;  and  it 
was  declared  that  '  the  levying  of  money  for  or  to  the  use  of 
the  crown  by  pretence  of  prerogative  without  grant  from 
parliament  for  longer  time  or  in  other  manner  than  the  same 
is  or  shall  be  granted,  is  illegal/  This  we  may  say  is  the  last 
word  on  this  matter — one  great  chapter  of  English  history  has 
been  closed. 

But  controversy  has  been  collecting  round  another  point 
Parliament  has  been  claiming  a  control  over  the  expenditure 
of  the  revenue.  We  have  to  remember  that  throughout  the 
Middle  Ages  the  king's  revenue  had  been  in  a  very  true  sense 
the  king's  revenue,  and  parliament  had  but  seldom  attempted 
to  give  him  orders  as  to  what  he  should  do  with  it  However, 
sometimes,  in  particular  under  Henry  IV,  it  had  forced  him  to 
render  accounts.  Under  the  Tudors,  parliament  hardly  dared 
to  meddle  with  such  matters  ;  but  in  1624  a  precedent  was  set 
for  an  appropriation  of  supplies — the  money  granted  by 
parliament  was  to  be  paid  into  the  hands  of  commissioners 
named  by  the  parliament,  and  was  to  be  applied  to  the  relief 
of  the  Palatinate.  A  similar  course  was  followed  in  1641 — 
but  this  might  perhaps  be  accounted  a  revolutionary  proceed- 
ing. During  the  rebellion  men  became  accustomed  to  see  the 


Constitutional  History  PERIOD 

national  finances  managed  by  a  parliamentary  committee.  In 
1665  a  very  large  sum  was  to  be  granted  for  the  Dutch  war ; 
a  clause  was  introduced  into  the  bill  which  imposed  the  tax 
to  the  effect  that  the  money  was  to  be  applied  only  to  the 
purposes  of  the  war.  This  precedent  was  followed  in  some,  but 
not  all,  other  cases  under  Charles  II — it  was  not  followed 
by  the  parliament  of  James  II.  After  the  Revolution 
it  was  invariably  followed — money  raised  by  taxation  was 
appropriated  to  this  purpose  and  to  that,  and  a  clause  was 
inserted  in  the  statute  forbidding  the  Lords  of  the  Treasury  to 
use  money  for  any  other  purpose  than  that  for  which  it  was 
appropriated.  Before  the  end  of  William's  reign,  a  certain 
'annual  sum  is  assigned  to  the  king  for  his  own  use ;  we  begin 
to  have  what  is  afterwards  called  a  civil  list ;  the  residue  of 
the  money  is  voted  for  this  purpose  and  for  that — so  much  for 
the  navy,  so  much  f5r  the  army.  Already  under  Charles  II 
it  had  become  apparent  that  such  appropriation  was  to  be  no 
idle  scheme ;  the  breach  of  an  appropriation  clause  was  one  of 
the  charges  on  which  Danby  was  impeached.  He  was  saved 
from  punishment  by  a  royal  pardon — a  matter  which  will 
come  before  us  by  and  by.  We  shall  also  see  how  the  appro- 
priation of  supplies  secured  as  a  matter  of  fact  that  parliament 
should  meet  every  year. 

Meanwhile,  the  commons  had  asserted,  not  merely  that 
money  bills  must  be  first  introduced  in  their  house,  but  also 
that  the  lords  cannot  make  amendments  in  them.  This  claim, 
it  seems,  cannot  be  traced  beyond  the  Restoratiort,  but  we  hear 
of  it  in  1 66 1  and  1671.  The  lords  gradually  and  reluctantly 
gave  way  about  this  matter — but  a  border  warfare  was  long 
kept  up  between  the  two  houses  as  to  details.  It  is  difficult 
to  find  any  principle  upon  which  this  so-called  privilege  of 
the  House  of  Commons  can  be  founded.  Before  the  end  of 
William's  reign  the  commons  saw  that  this  put  a  powerful 
engine  into  their  hands  for  coercing  the  House  of  Lords.  In 
1701,  in  order  to  force  the  lords  into  passing  a  bill  which 
annulled  the  grants  which  William  had  made  out  of  the 
forfeited  Irish  lands,  they  tacked  to  this  a  money  bill,  a  bill 
granting  the  Land  Tax  ;  they  sent  up,  that  is  to  say,  a  single 
bill  dealing  with  these  two  matters,  and  insisted  that  as  it  was 


IV  Taxation  of  the  Clergy 

a  money  bill,  the  lords  could  not  amend  it,  could  merely 
accept  or  reject  it  as  a  whole.  The  lords,  thus  forced  into 
a  dilemma,  had  to  pass  the  bill,  for  they  could  not  leave 
the  king  without  money1.  Thus  the  House  of  Commons 
became  in  practical  power  the  superior  of  the  two  houses. 
One  curious  little  point  remains  to  be  noticed,  namely,  the 
taxation  of  the  clergy.  Ever  since  Henry  VIITs  day  the 
clerical  subsidies,  though  voted  in  the  convocations,  were  con- 
firmed by  act  of  parliament.  During  the  commonwealth  the 
clergy  were  taxed  along  with  the  laity.  After  the  Restoration 
the  old  plan  was  for  a  moment  adopted— the  convocations  of 
1 66 1  taxed  themselves;  but  in  1662  they  were  taxed  by 
parliament  This  theoretically  great  change  was  the  outcome 
of  no  legislation,  there  was  no  fuss  about  it,  merely  a  private 
arrangement  between  Lord  Chancellor  Clarendon  and  Arch- 
bishop Sheldon.  From  that  moment,  we  'may  say,  the  clerical 
estate  disappears  finally.  Convocations,  ho  vever,  still  met,  but 
in  1717.  the  Bangorian  controversy,  originated  by  the  writings 
of  Hoadley,  Bishop  of  Bangor,  was  in  flame;  it  was  apparent 
that  the  clergy  would  censure  Hoadley,  a  friend  of  the  govern- 
ment. The  convocations  were  prorogued  by  royal  writ,  and 
were  never  summoned  again  for  business  until  1861. 

G.     Administration  of  Jtistice. 

The  greatest  event  that  we  have  to  notice  under  this 
heading  is  the  abolition  of  the  Star  Chamber — accomplished 
by  an  act  of  the  Long  Parliament,  to  which  the  king  gave 
assent  on  5  July,  1641 a.  More  and  more  the  theory  had 
grown,  that  it  derived  its  only  authority  from  the  act  of 
Henry  VII,  that  all  that  it  did  beyond  the  authority  of  that 
statute  was  illegal.  This  theory  was  adopted  by  the  act  which 
abolished  the  court.  It  abolished  the  court  commonly  called 
the  Star  Chamber — it  also  forbad  the  council  to  meddle  with 
civil  causes— it  abolished  the  jurisdiction  of  the  Council  of  the 
Marches,  and  the  Council  of  the  North ;  it  declared  that  no 
court  should  exercise  the  same  or  the  like  jurisdiction  as  had 
been  exercised  by  the  Star  Chamber.  On  the  same  day,  by 

1  Macaulay,  History  of  England,  c.  xxv. 

2  Gardiner,  Constitutional  Documents,  pp.  179 — 86. 


Constitutional  History  PERIOD 

another  act,  the  Court  of  High  Commission  was  abolished, 
and  it  was  declared  that  no  similar  court  should  be  erected 
for  the  future.  This  act  used  very  large  words  as  to  the 
abolition  of  all  ecclesiastical  jurisdiction.  During  the  com- 
monwealth episcopacy  disappeared.  In  1661,  after  the 
Restoration,  an  act  was  passed,  explaining  that  the  old  eccle- 
siastical courts  were  to  retain  their  old  powers — the  act  of 
1641  was  abolished  save  as  far  as  related  to  the  Court  of  High 
Commission.  Loyal  as  was  the  parliament  of  1661,  it  did  not 
mean  to  have  either  the  Star  Chamber  or  the  High  Commission 
back  again.  However,  in  1686  James  II,  in  the  teeth  of  these 
statutes,  entrusted  the  whole  government  of  the  church  to 
seven  commissioners  with  large  powers  of  suspending,  depriv- 
ing and  excommunicating  the  clergy.  His  hardly  disguised 
object  was  to  force  the  Roman  religion  on  the  national  church. 
It  is  one  of  the  offences  reckoned  up  against  him  in  the 
Declaration  and  the  Bill  of  Rights  that  he  has  issued  and 
caused  to  be  executed  a  commission  under  the  great  seal  for 
erecting  a  court  of  commissioners  for  ecclesiastical  causes  : 
this  is  '  illegal  and  pernicious/ 

The  Chancery,  though  it  had  never  been  popular,  and  had 
at  times  been  regarded  as  unconstitutional,  escaped.  Bare- 
bones'  Parliament  attempted  to  abolish  it, "  but  even 
Cromwell  found  that  the  Chancery  lawyers  were  too  much  for 
him1.  After  the  Restoration  a  new  period  opens  in  its  history. 
Heneage  Finch,  Lord  Nottingham,  who  became  Chancellor  in 
1675,  has  been  called  the  father  of  English  Equity.  Hence- 
forth equity  becomes  a  settled  system  of  rapidly  developing 
principles,  a  supplementary  system  of  case  law,  giving 
additional  remedies  and  enforcing  additional  duties — but  a 
system  of  case  law  with  precedents  reported  and  respected. 

Next  we  notice  that  the  independence  of  the  judges  has 
been  secured.  Throughout  the  Stuart  reigns  judges  have 
been  dismissed  if  they  withstand  the  king — too  often  they 
have  been  his  servile  creatures.  All  along  they  have  held 
their  offices  durante  beneplacito — during  the  king's  good 
pleasure.  At  once  after  the  Revolution  the  question  is  raisejd, 

1  For  the  attempts  to    reform    the    Law    during  the    Commonwealthgltee 
F.  A.  Inderwick,  The  Interregnum^  pp.  152 — 248.  wai 


IV  Independence  of  the  Judges          313 

and  .William's  judges  were  commissioned  quamdiu  se  ben* 
gesserint — during  good  behaviour.  He,  however,  refused  his 
assent  to  a  bill  for  making  this  a  matter  of  law — but  the 
point  was  secured  by  the  Act  of  Settlement  (12  and  13 
Will.  Ill,  c.  2).  So  soon  as  the  House  of  Hanover  comes  to 
the  throne  judge's  commissions  are  to  be  made  quamdiu  se 
bene  gesserint,  and  their  -salaries  are  to  be  fixed,  but  they  are 
to  be  removable  upon  an  address  of  both  houses  of  parlia- 
ment. This  means  that  a  judge  cannot  be  dismissed  except 
either  in  consequence  of  a  conviction  for  some  offence,  or  on 
the  address  of  both  houses. 

Another  important  matter  has  been  the  power  of  com- 
mitting to  prison  and  the  use  of  the  writ  of  habeas  corpus. 
The  first  question  is,  whether  the  king  or  king  in  council 
having  committed  a  man  to  prison,  it  is/  a  sufficient  return  to 
the  writ  that  he  was  committed  by  the  khig's  command.  We 
have  seen  that  the  judges  of  Elizabeth's x  day  had  returned 
a  very  obscure,  perhaps  designedly  obscure,  answer1.  The 
point  was  raised  by  Charles  I  in  the  interval  between  his 
second  and  his  third  parliament :  five  knights,  Darnel,  Corbet, 
Earl,  Heveningham,  and  Hampden  were  committed  to  gaol  for 
refusing  to  contribute  to  the  so-called  '  loan '  that  was  being 
exacted.  They  obtained  the  habeas  corpus,  and  the  gaoler 
returned  that  they  were  imprisoned  per  speciale  maudatum 
domini  Regis  signified  to  him  by  a  warrant  of  the  council. 
Darnel's  counsel  hardly  contended  that  he  should  be  set  free 
— but  did  contend  that  he  ought  to  be  liberated  on  bail — and 
produced  a  great  mass  of  precedents  to  show  that  the  courts 
had  repeatedly  bailed  prisoners  about  whom  similar  returns 
had  been  made.  The  judges  refused  to  bail  the  prisoners,  and 
sent  them  back  to  gaol.  In  doing  this  they  had,  I  think,  the 
weight  of  precedents,  even  of  modern  precedents,  against 
them  ;  but  practice  had  hardly  been  uniform,  and  we  are  not,  I 
think,  entitled  to  say  that  the  judgment  was  plainly  iniquitous. 
This  was  the  second  point  dealt  with  by  the  Petition  of  Right 
It  recited  the  famous  clause  in  Magna  Carta  Nullus  liber 
homo  etc. ;  it  recited  what  had  happened  in  Darnel's  case, 
and  it  prayed  'that  no  freeman  in  any  such  manner  as  is 

1  p-  -274- 


314  Constitutional  History  PERIOD 

before  mentioned  be  imprisoned  or  detained ' ;  and  to  this 
prayer  the  king  gave  his  assent.  On  2  March,  1629,  there 
was  a  disorderly  scene  in  the  House  of  Commons.  The 
Speaker  had  the  king's  commands  to  adjourn  the  house. 
Eliot  wished  to  read  a  remonstrance  against  the  taking  of 
tonnage  and  poundage  without  parliamentary  sanction.  The 
Speaker  was  held  down  in  his  chair.  On  10  March  the 
king  dissolved  parliament  A  few  days  after  he  arrested 
some  of  those  who  had  been  engaged  in  the  disorder,  Eliot, 
Holies,  Selden,  Long  and  Strode.  They  sued  out  a  writ  of 
habeas  corpus.  On  this  occasion  the  return  mentioned  a 
cause  for  the  arrest — they  were  arrested  for  notable  contempts 
and  for  stirring  up  sedition.  This  was  not  a  charge  of  felony 
or  treason,  and  the  judges  seem  to  have  had  no  real  doubt 
that  they  ought  to  be  bailed.  However,  they  temporized  and 
ordered  the  prisoner^  not  merely  to  find  bail  for  the  present 
charge,  but  also  to  find  sureties  for  future  good  behaviour. 
The  prisoners  refused  to  do  this.  The  king  afterwards 
liberated  all  but:  three.  Against  Eliot  an  information  was 
filed  in  the  King's  Bench  for  words  uttered  in  the  House: 
against  Holies  and  Valentine,  for  tumult  and  an  assault  on 
the  Speaker.  The  further  history  of  this  case  must  come 
under  the  heading  of  parliamentary  privilege. 

The  act  of  1641  which  abolished  the  Star  Chamber  did 
not  deprive  the  council  of  the  power  of  committing  to  prison ; 
it  deprived  it  of  criminal  jurisdiction,  of  power  to  hear  and 
determine  causes,  but  the  power  of  committing  to  prison 
suspected  persons  in  order  that  they  might  stand  their  trials 
in  the  ordinary  courts  was  left  to  it,  it  was  a  power  possessed 
by  every  justice  of  the  peace.  The  act,  however,  provided  that 
every  person  so  committed  should  be  entitled  to  a  habeas 
corpus,  and  made  some  stringent  regulations  for  forcing  the 
court  to  decide  at  once  whether  they  were  bailable  or  no. 

Thus  at  the  Restoration,  we  may  say,  the  general  principles 
of  the  law  were  settled  and  needed  no  amendment;  but 
events  showed  that  they  could  be  evaded.  Between  1670 
and  1679  the  House  of  Commons  attempted  to  get  a  new  act 
dealing  with  this  matter.  In  the  latter  year  the  famous 
Habeas  Corpus  act  was  passed  (31  Car.  II,  c.  2).  I  know  no 


IV  Habeas  Corpus  Act 

subject  on  which  it  is  more  difficult  to  lecture  briefly,  because 
it  is  altogether  made  up  of  details,  but  roughly  speaking  the 
result  is  this — any  person  who  stands  committed  for  any 
crime  except  for  treason  or  felony  plainly  expressed  in  the 
warrant  of  commitment,  is  to  have  the  writ.  He  is  to  be  able  to 
get  it  in  vacation  time  as  well  as  term  time.  The  chancellor  or 
any  judge  to  whom  he  applies  must  grant  it,  or  incur  a  penalty 
of  £500.  The  gaoler  must  make  the  return  within  a  very 
brief  time,  or  incur  a  penalty.  No  person  is  to  be  sent  into 
prison  out  of  the  kingdom ;  anyone  who  breaks  this  rule  is  to 
incur  the  penalty  of  %.praemunire  and  be  incapable  of  pardon. 
Prisoners  who  are  committed  for  treason  or  felony  are  to  have 
a  right  to  a  speedy  trial.  The  heavy  penalties  which  judges 
and  gaolers  incur  if  they  break  this  act  are  given  to  the 
injured  person,  may  be  sued  for  by  him  as  debts  ;  this  scheme 
makes  it  impossible  for  the  king  to  protect  or  pardon  them, 
for  the  king  has  no  power  to  forgive  a  debt  due  to  his 
subjects.  For  further  details  I  must  refer  you  to  Langmead 
or  Hallam,  or  still  better  to  the  act  itself1. 

One  of  the  offences  alleged  against  James  II  in  the 
Declaration  of  Rights  and  Bill  of  Rights  is  that  excessive  bail 
has  been  required  of  persons  committed  in  criminal  cases  to 
elude  the  benefit  of  the  laws  made  for  the  liberty  of  the 
subjects :  and  it  is  declared  that  excessive  bail  ought  not  to 
be  required.  This  is  somewhat  vague,  but  there  was  no  more 
distinct  provision.  The  law  as  to  what  offences  were  bailable, 
what  not,  was  still  in  the  main  contained  in  the  Statute  of 
Westminster  I  (1275).  As  a  general  rule  a  person  committed 
for  a  misdemeanour  was  entitled  to  bail ;  but  in  the  course 
of  the  seventeenth  and  eighteenth  centuries  a  number  of 
exceptions  were  made  to  this. 

To  this  period  also  we  must  assign  the  establishment  of 
the  principle  that  jurors  cannot  be  fined  or  imprisoned  or 
otherwise  punished  for  a  false  verdict,  or  for  a  verdict  against 
the  judge's  direction.  The  old  process  of  attaint  still  existed: 
nominally  it  existed  until  1825,  when  it  was  abolished  ;  but  it 
had  fallen  into  disuse,  and  judges  presiding  at  trials  had  taken 

*  Printed  in  Stubbs'  Select  Charters^  pp.  517 — 23. 


Constitutional  History  PERIOD 

^u  themselves  to  fine  and  imprison  jurors  in  a  summary  way 
for  perverse  verdicts.  Apparently  this  practice  began  in  the 
sixteenth  century.  In  1670  the  Court  of  Common  Pleas  in 
Bushell's  case  decided  that  it  was  illegal,  and  set  free  jurors 
who  had  been  imprisoned  by  justices  of  oyer  and  terminer  at 
the  Old  Bailey*  The  abolition  of  the  Star  Chamber  was,  we 
must  remember,  the  abolition  of  a  court  which  habitually 
punished  jurors  for  perverse  verdicts.  We  may  say  that  at 
the  end  of  our  period  the  principle  is  fully  established  that  for 
a  perverse  verdict  or  a  verdict  against  the  judge's  direction 
jurors  cannot  be  punished  —though  the  old  process  of  attainting 
them  before  a  jury  of  twenty-four  (which  seems  never  to  have 
been  applied  in  criminal  cases)  still  maintained  a  nominal 
existence.  A  corrupt  verdict  would  of  course  be  a  different 
matter — for  this  jurors  might  be  indicted  and  tried  in  the 
regular  way. 

Meanwhile  some  other  points  of  our  judicial  constitution 
were  settled.  The  House  of  Lords  had  succeeded  in  estab- 
lishing its  right  to  hear  appeals  from  the  Court  of  Chancery 
and  had  failed  in  establishing  a  right  to  act  as  a  court  of  first 
instance  in  civil  matters.  We  have  seen  how  the  function  of 
the  House  of  Lords  as  a  court  of  error  had  fallen  into 
abeyance  towards  the  end  of  the  Middle  Ages,  and  been 
revived  under  James  I.  During  the  reign  of  Charles  I  it 
pressed  its  claims  further  with  little  protest  from  the  commons; 
it  entertained  appeals  from  the  Chancery,  and  it  exercised  a 
jurisdiction  as  a  court  of  first  instance  both  in  civil  cas^^  and 
in  criminal  cases  which  had  nothing  to  do  with  privilege. 
When  at  the  Restoration  the  time  came  for  reestablishing  the 
ancient  constitution,  this  part  of  the  constitution  was  in  a 
somewhat  undefined  state  and  gave  rise  to  some  bitter  quarrels 
between  the  two  Houses  of  the  parliament  of  1661 — Charles  II's 
long  parliament.  The  result  I  have  described.  In  the  case  of 
Skinner  v.  The  East  India  Company  the  lords  attempted  to  act 
as  a  civil  court  of  first  instance.  Both  houses  had  gone  great 
lengths,  and  when  in  1670  the  king  intervened  and  persuaded 
the  houses  to  rescind  all  their  proceedings,  the  fruits  of  victory 
in  this  case  were  obtained  by  the  commons — the  lords  tacitly 
abandoned  their  claim  to  an  original  civil  jurisdiction.  In 


IV          Judicial  Power  of  the  Lords 

1675  they  fell  out  again  over  the  case  of  Shirley  v.  Fagg,  „ 
case  in  which  the  House  of  Lords  had  taken  on  itself  to  hear 
an  appeal  from  the  Chancery.     In  this  case  after  long  disputes 
the  commons  tacitly  gave  way,  and  the  lords  established  their 
point.     The  truth  seems  to  be  that  the  commons  were  getting 
frightened  by  their  own  arguments.     The  historical  investi- 
gations into  which  they  plunged  might  show  them  that  the 
claim  of  the  House  of  Lords  to  an  inherent  power  of  hearing 
appeals  from  the  Chancery  was  a  new  claim,  but  such  investi- 
gations could  only  bring  out  into  clearer  relief  the  ancK 
doctrine  that  the  only  source  of  all  jurisdiction  is 
Tlicy  did  no4-  want  to  exalt  the  king's  power,  anr 
way  without  however  conceding  that  they  were 
Thus  it  came  about  that  the  House  of  Lords  acq 
domain  for  its  judicial  powers — it  now  sat  as  an  apx 
from  the  Chancery;  as  the  depository  of  tvhe  judicial  ^ 
parliament  it  was  a  court  for  correcting  the  errors  in 
the  courts  of  common  law,  it  was  a  court  for  the  trial  of  A 
indicted  for  treason  or  felony,  and  lastly  it  was  the  tribunal 
for  impeachments. 

This  is  the  era  of  impeachments.  Do  not  think  of 
impeachments  as  common  events.  During  the  whole  of 
English  history  there  have  not,  I  think,  been  seventy,  and  a  full 
quarter  of  all  of  them  belong  to  the  years  1640-1-2.  Almost 
every  case  therefore  has  raised  some  new  point.  Perhaps  the 
most  important  points  are  these — (i)  can  a  commoner  be 
impeached  for  felony  or  treason  ?  The  lords  in  Fitzharris's 
case  (1681)  decided  that  he  could  not — he  was  entitled  to  trial 
by  jury  in  every  capital  case.  The  commons  voted  that  this 
was  a  violation  of  the  constitution  of  parliament.  Fitzharris 
was  indicted  for  treason  in  the  ordinary  way  before  the  King's 
Bench  and  hanged.  In  1689  however  the  House  of  Lords  in 
the  case  of  Sir  Adam  Blair  and  other  commoners  impeached 
for  treason  decided  to  proceed  with  the  impeachment.  Certainly 
in  the  reign  of  Charles  I  they  had  not  objected  to  trying 
impeached  commoners  for  treason.  The  question  has  not 
been  raised  since  1689,  though  it  has  often  been  discussed.  I 
believe  that  the  weight  of  legal  authority  is  against  the 
impeachment  of  commoners  for  treason  or  felony.  Sir  J.  F. 


Constitutional  History  PERIOD 

vephen  lays  down  that  a  commoner  cannot  be  impeached 
for  treason  or  felony,  but  that  there  may  be  some  doubt  as  to 
treason1.     (2)  It  was  at  length  decided  in  the  case  of  Warren 
Hastings  that   neither  a   prorogation,  nor  a  dissolution   of 
parliament,  will  bring  an  impeachment  to  an  end.     About 
this  the  House  of  Lords  in  Charles  IFs  reign  had  come  to 
contradictory  resolutions;  in  Danby's  case  (1679)  it  had  held 
that  a  dissolution  did  not  put  a  stop  to  an  impeachment;  in 
1685  it  reversed  and  annulled  this  resolution.     Too  often  such 
~ofters  have  been  decided  by  party  votes.     (3)  Danby's  case 
-^important  question,  whether  a  royal  pardon  could 
^achment;  th^  question  was  raised  but  not  decided, 
.chment  was  dropped.     The  Act  of  Settlement 
dt  a  pardon  shall   not   be   pleadable   to  an    im- 
.c,  but  does  not  prevent  the  king  from  pardoning 
ntence — and   three    of   the   lords   concerned    in   the 
jn  of  1715   were  pardoned  after  they  had  been  im- 
led,  found  guilty  and  sentenced.     As  to  the  point  raised 
.**  jJanby's  case,  whether  as  the  law  stood  a  pardon  would  stop 
an  impeachment,  it  was  a  very  new  point,  and  on  general 
principles  I  am  far  from  being  satisfied  that  the  commons  had 
the  best  of  the  argument.     The  question  would  seem  to  be 
whether  an  impeachment  was  more  analogous  to  an  indict- 
ment, which  could  always  be  stopped  by  the  king's  pardon, 
or  to  an  appeal  of  felony  which,  being  regarded  as  a  private 
suit,  was  beyond  the  royal  power. 

Another  change  to  be  noted  is  this.  We  remember  that 
if  a  peer  is  indicted  for  treason  or  felony  he  is  tried  if 
parliament  be  in  session  by  his  peers  in  the  House  of  Lords, 
but  if  parliament  be  not  sitting,  then  by  the  Court  of  the 
Lord  High  Steward.  The  king,  since  the  steward's  office  had 
ceased  to  be  hereditary,  made  some  peer  High  Steward  for 
the  occasion,  who  summoned  a  number  of  peers,  not  fixed  by 
law,  to  hold  the  trial2.  This  of  course  enabled  the  king  or  his 
steward  to  pack  the  court.  An  act  of  1696  altered  this  in  case 
of  treason,  but  not  in  case  of  felony,  by  ordering  that  all  peers 

1  History  of  Criminal  Law,  'vol.  I,  p.  146, 
*  See  above,  p.  171. 


IV  Treason  and  Attainder  319 

should  be  summoned  twenty  days  before  the  trial.  I  believe, 
however,  that  in  no  case  has  this  provision  taken  effect ;  the 
last  trial  in  the  Court  of  the  High  Steward  is  said  to  be  that 
of  Lord  Delamere  for  treason  in  1686.  Parliament  has  sat  so 
regularly  year  by  year  that  there  has  been  no  need  for  such  a 
court,  and  since  the  end  of  George  II's  reign  there  have,  I 
believe,  been  but  four  cases  of  the  trial  of  peers  in  parliament 
otherwise  than  on  impeachment.  These  are  Lord  Ferrers  for 
murder  in  1760,  Lord  Byron  for  murder  in  1765,  the  Duchess 
of  Kingston  for  bigamy  in  1776,  and  Lord  Cardigan  for 
murder  in  I84I1. 

This  same  act  of  1696  introduced  various  important 
modifications  into  the  procedure  in  cases  of  treason.  The 
indicted  person  was  to  have  a  copy  of  the  indictment,  might 
make  his  defence  by  counsel,  and  produce  witnesses  who  were 
to  be  examined  on  oath.  He  was  only  to  be  convicted  if  there 
were  two  witnesses  to  the  same  treason,  he  was  only  to  be 
prosecuted  within  three  years  after  the  alleged  treason.  He 
was  to  have  a  copy  of  the  panel,  that  is,  of  the  names  of  the 
persons  summoned  as  jurors,  two  days  before  the  trial,  in  order 
that  he  might  consider  whom  to  challenge.  In  all  these 
respects  a  number  of  exceptions  in  favour  of  persons  accused 
of  treason  were  made  from  the  general  law.  It  was  not  until 
1702  that  an  accused  felon  could  produce  witnesses  who  could 
be  examined  on  oath,  and  it  was  not  until  1836  (6  and  7 
Will.  IV,  114)  that  he  was  suffered  to  make  his  defence  by 
counsel. 

The  evil  practice  of  passing  acts  of  attainder  has  not  yet 
fallen  into  disuse.  It  was  by  an  act  of  attainder  that  Strafiford 
perished  in  1641.  It  was  by  an  ordinance  of  the  two  Houses, 
to  which  the  king's  assent  had  of  course  not  been  obtained, 
that  Laud  perished  in  1645.  In  1660  the  turn  for  the  regicides 
came ;  such  of  them  as  were  not  already  dead  or  beyond 
the  seas  were  attainted  of  high  treason  by  act  of  parliament. 
In  1696  Sir  John  Fenwick  was  attainted  for  the  attempt  to 
assassinate  William  III.  This  is  the  last  instance  of  an  act 

1  Lord  Russell  was  tried  for  bigamy  in  1901.  Lord  Halsbury  (Lord  Chancellor) 
presided  as  Lord  High  Steward.  There  were  also  present  about  160  Peers,  in- 
cluding all  the  Law  Lords  who  generally  hear  appeals,  and  eleven  Judges. 


320  Constitutional  History  PERIOD 

passed  to  inflict  the  punishment  of  death  for  an  offence 
already  committed ;  but  minor  punishments  have  been  in- 
flicted by  similar  means  in  later  days. 

One  more  remark.  The  act  which  abolished  the  Star 
Chamber  did  not  of  course_abolish  the  council.  It  was  still 
after  the  Restoration  the  body  consulted  by  the  king  when  he 
wanted  advice,  though  already  the  practice  is  springing  up  of 
consulting  only  a  few  of  its  members,  a  practice  which  in 
course  of  time  has  given  us  the  modern  cabinet.  But  the  act 
just  mentioned  did  not  deprive  the  council  even  of  all  judicial 
power.  It  was  forbidden  to  take  cognizance  of  any  matter  of 
property  belonging  to  the  subjects  of  this  kingdom ;  but  it 
retained  jurisdiction  as  a  court  of  last  resort  in  admiralty 
matters,  and  in  all  matters  civil  and  criminal  arising  in  the 
king's  lands  beyond  the  seas.  From  very  small  beginnings,  a 
jurisdiction  over  the  Isle  of  Man  and  the  Channel  Islands,  this 
power  steadily  grew  as  conquest  and  colonization  gave  the 
king  new  lands  beyond  the  seas.  Thus  the  Privy  Council 
became  an  ultimate  tribunal  for  a  vast  empire— not  for 
England,  not  for  Great  Britain,  but  for  all  other  lands  of  the 
king  in  all  corners  of  the  globe — a  marvellous  jurisdiction  now 
exercised  by  the  judicial  committee  of  the  Privy  Council 

II.    Privilege  of  Parliament. 

Over  the  privileges  of  parliament  there  has  been  severe 
fighting.  In  the  first  place  as  regards  freedom  of  speech  we 
have  Eliot's  case.  A  few  days  after  the  dissolution  of  1629 
Eliot  and  others  were  arrested  and  committed  to  the  Tower. 
They  obtained  writs  of  habeas  corpus,  and  the  returns  to  those 
writs  stated  that  they  had  been  committed  for  notable 
contempts  and  for  stirring  up  sedition.  The  judges  had  to 
consider  whether  they  should  be  bailed  or  no,  and  seemingly 
there  was  no  real  doubt  that  by  law  bail  ought  to  be  allowed 
— but  they  temporized  and  demanded  from  the  prisoners  not 
merely  bail  for  the  present  charge,  but  also  sureties  for  future 
good  behaviour.  The  attorney-general  then  brought  forward 
a  criminal  charge  against  three  of  them,  against  Eliot  for 
words  spoken  in  the  House,  against  Holies  and  Valentine  for 


IV  Freedom  of  Speech  321 

a  tumult  on  the  last  day  of  the  session.  The  others  were 
liberated.  The  prisoners  pleaded  that  as  the  alleged  offences 
were  supposed  to  be  committed  in  parliament  they  ought  not 
to  answer  for  them  in  another  court.  They  relied  much  on 
Strode's  case  and  the  act  of  1512  (4  Hen.  VIII,  c.  8),  passed 
respecting  him  ;  this  they  contended  was  a  general  act.  The 
judges  held  that  it  only  applied  to  suits  against  members  of 
parliament  prosecuted  in  the  Stannary  courts,  and  arguing 
that  the  King's  Bench  has  power  to  punish  crimes  wherever 
committed,  sentenced  the  prisoners,  who  refused  to  plead  any 
other  plea,  to  be  imprisoned  during  the  king's  pleasure. 
When  the  Long  Parliament  met  the  commons  protested 
against  this  as  a  breach  of  privilege.  After  the  Restoration, 
the  parliament,  however  loyal,  was  not  disposed  to  retract  its 
claim  of  privilege.  In  1667  both  Houses  agreed  in  declaring 
that  Strode's  act  was  a  general  act  declaratory  of  the  ancient 
and  necessary  rights  and  privileges  of  parliament  and  that 
the  judgment  against  Eliot,  Holies  and  Valentine  was  illegal, 
What  is  more,  Holies,  who  was  still  alive,  caused  the  judgment 
to  be  brought  before  the  House  of  Lords  by  writ  of  error, 
and  the  House  in  its  judicial  capacity  reversed  the  judgment 
not  however  J^PJjgftat  the  reversal  of  this 


judgment  established  the  principle^  Jhat  HQthing  done  in 
paHiament  by  any  ofjtsjiiembers  can  bgjpunished  as  a^crirrje 
in  a  cour^ofjaw.  It  was  conceded  that  had  the  charge  been 
merely  thaFoTcommitting  a  riot  in  the  House,  the  King's  Bench 
might  have  taken  cognizance  of  the  case;  but  words  spoken 
in  parliament  it  could  not  punish.  We  may  take  it  to  be  law 
that  an  ordinary  crime,  such  as  theft  committed  by  a  member 
in  the  House,  might  be  punished  in  the  ordinary  courts  in  the 
ordinary  way.  Since  the  Restoration  there  has  not,  I  believe, 
been  any  attempt  made  by  any  court  of  law  to  punish  a 
member  for  words  spoken  in  the  House.  The  Declaration 
and  Bill  of  Rights  proclaim  that  the  freedom  of  speech  and 
debates  orproceedingsin  parliament  ought  not^p_b£_iiq^ 
pca^Tigd^or_fluestioned  in  any  court  oFplacejaut  of  parliament. 
The  attempt  to  arrest  TEe  five  members  must  also  be 
noticed.  Charles  had  determined  to  accuse  five  members  of 
the  House  of  Commons  of  high  treason.  This  he  did,  not  by 

M.  21 


322  Constitutional  History  PERIOD 

causing  them  to  be  indicted  in  the  ordinary  way,  but  by 
preferring  a  set  of  charges  against  them  in  the  House  of 
Lords.  For  such  a  proceeding  there  seems  to  have  been  no 
warrant,  at  least  in  later  times.  Only  by  an  impeachment 
preferred  by  the  commons  could  a  commoner  be  brought  to 
trial  before  the  lords  for  any  crime,  and,  as  we  have  seen,  it 
might  be  doubted  whether  a  commoner  could  even  be  im- 
peached for  treason  or  felony — thus  he  would  be  deprived  of 
trial  by  jury.  Then  the  king  in  person  attempted  to  arrest 
the  five  members  in  the  House  of  Commons,  while  the  House 
was  sitting.  Now  a  member  of  parliament  has  no  privilege 
of  freedom  from  arrest  on  a  charge  of  treason  or  felony — 
indeed,  according  to  later  authorities,  he  has  none  on  a  charge  of 
any  indictable  offence.  You  should  therefore  understand  that 
outside  the  House  Pym  and  his  fellows  might  have  been 
arrested ;  perhaps  they  might  lawfully  have  been  arrested 
within  the  walls  of  the  House,  if  the  House  had  not  been 
sitting.  But  the  attempt  to  arrest  them  while  they  were 
sitting  as  members  of  the  House,  we  may  probably  reckon  as 
a  distinct  breach  of  the  law ;  at  any  rate  it  was  an  extremely 
high-handed  act,  intended  to  overawe  the  House  :  it  made  the 
Civil  War  almost  certain. 

After  the  Restoration  members  of  Parliament  enjoyed  the 
privilege  of  freedom  from  arrest  in  all  civil  cases.  We  must 
remember  that  imprisonment  in  civil  cases  was  at  this  time 
very  common ;  debtors  were  imprisoned  by  way  of  execution, 
and  when  an  action  was  begun  against  a  man  he  might  very 
commonly  be  at  once  arrested  and  compelled  to  find  bail  for 
his  appearance  in  court,  or  otherwise  remain  in  prison — so  this 
privilege  was  a  very  important  matter.  It  was  carried  to  great 
lengths — the  members  claimed  freedom  from  arrest  not  only 
for  themselves  but  for  their  servants,  and  they  claimed  that 
their  property  should  be  privileged  from  execution.  These 
extensive  claims  which  were  admitted  in  the  seventeenth 
century  were  gradually  curtailed  by  statute ;  they  had  become 
serious  obstructions  to  the  ordinary  course  of  justice.  A 
statute  of  1700  began  this  process  of  curtailment;  statutes  of 
Anne  and  George  III  (1770)  carried  the  process  further1 
1  2  and  3  Anne,  c.  18.  10  George  III,  c.  50. 


IV  Punishment  for  Contempt  323 

The  servants  and  the  property  of  members  were  no  longer 
privileged — nothing  was  left  but  the  freedom  from  arrest  for 
members  themselves,  a  matter  which  the  abolition  of  imprison- 
ment for  debt  has  in  our  own  day  made  of  small  importance. 

As  to  the  power  of  punishing  persons  for  contempt,  the 
two  Houses  vied  with  each  other  in  extending  its  limits.  It 
was  freely  exercised  to  protect  the  members  of  the  Houses 
from  assault  and  insult — under  William  III  he  who  makes 
any  insulting  remark  about  any  member  of  the  House  runs  a 
great  chance  of  incurring  its  displeasure  and  being  imprisoned 
by  its  order.  But  further  it  becomes  dangerous  even  to 
trespass  on  a  member's  land  or  to  fish  in  his  waters.  During 
the  latter  half  of  the  eighteenth  century  the  Houses  gradually 
abandoned  their  claim  to  avenge  all  manner  of  wrongs  done 
to  their  members — but  of  this  abandonment  hereafter;  during 
William's  reign  the  claim  of  privilege  was  at  its  height. 

A  more  justifiable  use  of  the  power  of  the  House  consisted 
in  the  punishment  of  attacks  directed  not  against  individual 
members  but  against  the  House  as  a  body.  But  even  in  this 
sphere  the  power  was  intemperately  used.  A  notorious 
instance  has  just  occurred.  In  1701  the  majority  in  the 
Commons'  House  has  been  slow  to  grant  supply.  The  grand 
jury  of  Kent  present  a  respectfully  worded  petition  begging 
them  to  grant  the  king  the  money  urgently  needed  for  the 
prosecution  of  the  war.  The  House  voted  that  this  petition 
was  scandalous  and  an  attempt  to  destroy  the  constitution  of 
parliament,  and  it  committed  some  of  the  petitioners  to 
prison.  It  does  not  seem  that  they  appealed  for  protection 
to  the  courts  of  law ;  parliament  was  soon  prorogued  and 
they  were  delivered.  By  this  time  it  had  apparently  become 
settled  doctrine  that  the  House  of  Commons  could  not 
imprison  a  person  save  during  the  session,  so  that  a  prorogation 
would  set  its  prisoners  free.  They  have  not  since  the  Revo- 
lution attempted  to  keep  a  man  in  prison  beyond  the  limits 
of  the  session.  On  the  other  hand,  the  House  of  Lords  has 
imposed  fines  and  committed  persons  to  prison  for  a  term  of 
months  or  of  years. 

Whether  a  person  imprisoned  for  contempt  could  get  any 
aid  from  a  court  of  law,  could  get  a  court  of  law  to  entertain 

21 2 


324  Constitutional  History  PERIOD 

the  question  whether  a  contempt  had  been  committed  was, 
we  may  say,  at  this  time  somewhat  doubtful.  Suppose  the 
prisoner  obtained  a  writ  of  habeas  corpus  and  the  gaoler 
returned  that  he  was  imprisoned  by  order  of  one  of  the  two 
Houses  for  a  contempt,  would  the  judges  be  at  liberty  to 
investigate  the  question  whether  the  alleged  acts  amounted 
to  a  contempt?  In  1677  the  House  of  Lords  committed 
Lord  Shaftesbury  and  three  other  peers  for  words  spoken 
during  a  debate.  Shaftesbury  applied  for  a  writ  of  habeas 
corpus,  but  the  judges  held  that  they  could  not  inquire  into  a 
commitment  by  the  lords  of  one  of  their  body.  In  1680  the 
commons  treated  certain  persons  known  as  '  abhorrers '  in  a 
very  arbitrary  fashion.  They  brought  actions  against  the 
serjeant-at-arms  who  had  imprisoned  them — he  pleaded  the 
command  of  the  House  ;  but  the  judges  on  this  occasion  over- 
ruled the  plea.  After  the  Revolution  the  commons  took  this 
matter  up  and  summoned  two  of  the  judges  to  the  bar.  One 
of  them,  Pemberton,  made  some  show  of  argument,  but 
afterwards  gave  way  and  admitted  that  the  command  of  the 
House  would  justify  the  officer  in  making  the  arrest. 

Thus  stands  the  question  at  William's  death.  Soon  after- 
wards (Patey's  case,  1705)  the  judges  came  to  the  opinion 
that  they  could  not  investigate  the  legality  of  a  commitment 
for  contempt.  If  the  House  committed  a  man  for  contempt 
and  said  no  more,  the  courts  could  do  nothing  for  him.  Thus 
each  of  the  Houses  gained  a  power  of  arbitrary  imprisonment 
which  had  been  denied  to  the  Court  of  Star  Chamber.  The 
judges  of  the  last  century  seem  to  me  to  have  been  almost  as 
subservient  to  the  Houses  as  their  predecessors  of  the  Stuart 
times  were  to  the  king.  And  so  the  matter  rests  at  the 
present  day  :  if  either  House  commits  a  man,  whether  he  be  a 
member  or  no,  for  contempt,  there  is  no  tribunal  in  which  he 
can  raise  by  writ  of  habeas  corpus  the  question  whether  a 
contempt  has  really  been  committed. 

I.     Military  Affairs. 

Turning  now  to  military  affairs  we  have  to  recall  the  fact 
that  before  the  days  of  Charles  I  proclamations  of  martial 
law  had  not  been  utterly  unknown.  Not  to  go  back  to  the 


IV  Commissions  of  Martial  Law         325 

Wars  of  the  Roses,  Elizabeth  had  issued  such  a  proclamation 
in  1588  and  again  in  1595.  James  had  followed  the  example 
in  1617,  1620,  1624.  Probably  we  ought  to  say  of  them  that 
they  were  illegal,  though  in  this  matter  we  may  be  prejudiced 
by  what  then  was  future  history.  Charles  I  early  in  his  reign 
had  recourse  to  such  commissions.  It  became  always  clearer 
that  there  must  be  a  standing  army  and  that  a  standing  army 
could  only  be  kept  together  by  more  stringent  rules  and 
more  summary  procedure  than  those  of  the  ordinary  law  and 
the  ordinary  courts.  Another  grievance  was  the  billeting  of 
soldiers.  In  1628  the  king  had  to  assent  to  the  Petition  of 
Right  After  dealing  with  the  forced  loan  and  the  imprison- 
ments by  the  king's  -command,  it  recited  that  'of  late  great 
companies  of  soldiers  and  mariners  have  been  dispersed  into 
divers  counties  of  the  realm  and  the  inhabitants  against  their 
wills  have  been  compelled  to  receive  them  into  their  houses... 
against  the  laws  and  customs  of  this  realm/  Then  it  recalled 
the  words  of  Magna  Carta,  Nullus  liber  homo,  and  recited 
the  commissions  of  martial  law  ;  these  it  declared  to  be 
wholly  and  directly  contrary  to  the  laws  and  statutes  of  the 
realm.  It  prayed  that  the  king  would  be  pleased  to  remove 
the  said  soldiers  and  mariners,  'and  that  your  people  be  not 
so  burdened  in  time  to  come,  that  the  commissions  of  martial 
law  might  be  revoked  and  annulled  and  that  no  such  com- 
missions might  be  issued  for  the  future/  This  of  course 
settled  the  law,  and  no  expedient  for  evading  it  could  be 
discovered.  The  judges  had  to  infoim  the  king's  generals 
that  soldiers  who  offended  must  be  tried  by  the  ordinary 
courts  ;  that  only  when  an  army  of  the  king  was  in  presence 
of  the  enemy  could  there  be  any  place  for  martial  law.  Coke 
in  one  of  his  latest  books  lays  down  that  to  put  a  man  to 
death  by  martial  law  is  murder1. 

Meanwhile  the  king  and  parliament  began  to  quarrel 
about  another  and  a  still  more  vital  point.  In  whom  was  the 
command  of  the  military  forces  of  the  kingdom  vested?  I 
think  that  historians  and  lawyers  must  agree  that  it  was  in 

1  3  Inst.  51.  Reference  may  be  made  to  Dicey,  Law  of  the  Constitution^ 
6th  ed.  c.  vin,  and  App.  xn ;  also  to  The  Charge  of  the  Lord  Chief  Justice  to  the 
Grand  Jury  in  the  case  of  the  Queen  v.  Nelson  and  Brand,  ed.  F.  Cockburn,  1867. 


326  Constitutional  History  PERIOD 

the  king.  It  would  have  been  necessary  to  go  back  to  very 
remote  and  revolutionary  times  for  a  precedent  of  an  attempt 
by  parliament  to  wrest  this  power  from  the  king's  hands. 
However  Charles  was  suspected,  and  perhaps  justly  suspected, 
of  desiring  to  use  the  army  for  the  overthrow  of  the  parlia- 
mentary constitution  ;  and  in  1642  the  Houses  asserted  that 
the  power  of  the  militia  (as  it  was  called)  was  or  at  all  events 
ought  to  be  in  their  hands.  This,  as  is  well  known,  was  one 
of  the  immediate  causes  of  the  Civil  War;  the  king  was 
required  to  consent  to  a  bill  putting  the  militia,  as  the  old 
county  forces  were  now  called,  beyond  his  control.  That  the 
militia  and  all  fortified  places  should  be  in  such  hands  as 
parliament  should  appoint  was  one  of  the  Nineteen  Proposi- 
tions tendered  to  him  at  York  in  June,  1642.  During  the 
war  which  followed  both  sides  had  recourse  to  martial  law 
for  the  government  of  their  armies1. 

I  need  not  remind  you  how  after  this  England  came 
under  the  domination  of  the  army,  parliament  itself  becoming 
the  despised  slave  of  the  force  that  it  had  created.  At  the 
Restoration  the  very  name  of  a  standing  army  had  become 
hateful  to  the  classes  which  were  to  be  the  ruling  classes. 
In  1661  a  statute  (13  Car.  II,  c.  6)  declared  that  the  'sole 
supreme  government  of  the  militia  and  of  all  forces  by  sea 
and  land  is,  and  by  the  laws  of  England  ever  was,  the 
undoubted  right  of  the  king  and  his  predecessors,  and  that 
neither  house  of  parliament  could  pretend  to  the  same/  The 
old  county  force  was  remodelled  by  this  act.  But  loyal  as 
the  parliament  might  be,  it  would  not  trust  even  a  king  with 
such  an  engine  of  tyranny  as  a  standing  army.  The  Con- 
vention Parliament  passed  an  act  disbanding  the  army;  the 
king  assented ;  he  also  had  some  reason  to  dread  a  standing 
army.  The  act  of  disbandmcnt,  however,  sanctioned  the  con- 
tinuance of  '  the  Guards  and  Garrisons/  The  garrisons  were 
to  be  placed  in  the  condition  in  which  they  existed  in  1637, 
and  out  of  the  residue  of  the  soldiers  the  king  was  to  be  at 
liberty  to  retain  a  guard.  The  number  of  this  guard  was  not 
specified.  Throughout  the  reign  and  on  to  the  Revolution  no 
more  than  this  was  legalized.  Controversy  constantly  broke 

1  Gardiner,  Constitutional  Documents,  pp.  245—61. 


IV          Jealousy  of  a  Standing  Army        327 

out  between  king  and  parliament  as  to  military  matters.  It 
was  extremely  difficult  to  prevent  the  king's  guards  living  at 
free  quarters,  though  the  billeting  of  them  was  undoubtedly 
illegal.  This  practice  had  been  declared  illegal  by  the  Peti- 
tion of  Right,  and  the  old  prerogatives  of  purveyance  and 
preemption  with  which  it  was  nearly  connected  had  been 
abolished  along  with  the  military  tenures.  The  king  could 
impress  no  cart  for  military  transport,  he  could  buy  no  hay, 
straw,  victual,  or  other  thing  save  by  free  bargain.  Anyone 
who  attempted  to  exercise  these  old  prerogatives  was  liable 
to  an  action  for  treble  damages  at  the  suit  of  the  party 
grieved  ;  anyone  who  attempted  to  stop  such  an  action  was 
liable  to  the  punishments  denounced  by  the  statute  of  prae- 
mimire.  Also  it  was  difficult  for  the  king  to  keep  his  soldiers 
in  hand.  In  time  of  peace  no  punishment,  at  least  no  punish- 
ment extending  to  life  or  member,  could  be  inflicted  on  them 
except  in  the  ordinary  course  of  the  common  law.  On  the 
other  hand  it  was  practically  very  difficult  to  prevent  the 
officers  from  proceeding  according  to  what  they  conceived  to  be 
the  justice  of  martial  law.  However,  in  1666,  articles  of  war 
were  issued  providing  for  the  trial  of  even  capital  offences  by 
court  martial;  also  forbidding  that  any  civil  magistrate  should 
imprison  a  soldier  save  for  treason,  or  for  killing  or  robbing  a 
person  not  being  an  officer  or  soldier.  Seemingly  the  officers 
who  sat  on  such  courts  martial  must  have  risked  their  necks. 

Soon  after  this  Clarendon  was  impeached,  '  for  that  he 
hath  designed  a  standing  army  to  be  raised  and  to  govern  the 
kingdom  thereby;  and  advised  the  king  to  dissolve  parlia- 
ment and  to  lay  aside  all  thoughts  of  parliament  for  the 
future,  to  govern  by  a  military  power  and  to  maintain  the 
same  at  free  quarters  and  contributions/  But  to  keep  a 
standing  army  of  any  considerable  size  without  supplies  from 
parliament  was  impossible,  and  parliament  was  beginning  to 
appropriate  its  supplies  and  to  impeach  those  who  infringed 
the  clauses  of  appropriation.  Already,  in  1666,  a  subsidy 
was  granted ;  ^30,000  and  no  more  was  appropriated  to  the 
pay  of  the  guards,  the  residue  was  to  be  spent  in  the  war. 
In  1676  Charles  declared  that  he  was  going  to  war  with 
France;  parliament  granted  but  appropriated;  war  was  not 


328  Constitutional  History  PERIOD 

made ;  parliament  passed  an  act  for  disbanding  the  army,  an 
act  which  contains  an  important  clause  directed  against  the 
practice  of  billeting — important  because  it  shows  that  the 
Petition  of  Right  was  not  observed.  Money  was  appropriated 
for  the  disbanding  of  the  army.  Seymour  was  impeached  for 
having  misappropriated  these  supplies — using  them  to  retain 
instead  of  to  disband  the  soldiers.  Danby,  the  Lord  Treasurer, 
was  impeached  '  for  that  he  had  traitorously  endeavoured  to 
subvert  the  ancient  and  well-established  form  of  government 
in  this  kingdom,  and  the  better  to  effect  that  his  purpose,  he 
did  design  the  raising  of  an  army  upon  a  pretence  of  war 
against  the  French  king,  and  to  continue  the  same  as  a 
standing  army  within  this  kingdom  ;  and  to  that  end  he  has 
misappropriated  money,  whereby  the  law  is  eluded,  and  the 
army  is  yet  continued/  Nevertheless  Charles  and  James 
after  him  in  one  way  and  another  kept  the  army  on  foot. 
James  seems  to  have  had  above  16,000  men.  After  Mon- 
mouth's  rebellion  courts  martial  sat  to  administer  martial  law 
upon  the  soldiers.  I  have  before  me1  the  record  of  one  of 
these  courts  martial.  Peter  Teat  and  Peter  Innes  of  Captain 
Bedford's  regiment  are  tried  by  eighteen  officers  under  one 
of  the  articles  of  war  lately  issued  which  says  that  '  No  officer 
or  soldier  shall  use  any  traitorous  words  against  the  sacred 
person  of  the  king's  most  excellent  majesty  upon  pain  of 
death.'  They  are  condemned  to  be  hanged. 

The  Bill  of  Rights  declared  that  one  of  James's  offences 
had  been  that  he  had  raised  and  kept  a  standing  army  in 
time  of  peace  without  consent  of  parliament,  and  quartered 
soldiers  contrary  to  law;  and  further  that  the  raising  or  keep- 
ing a  standing  army  within  the  kingdom  in  time  of  peace, 
unless  it  be  with  consent  of  parliament,  is  against  law.  The 
words  '  in  time  of  peace '  should  be  noticed  ;  they  certainly 
seem  to  imply  that  in  time  of  war  the  king  may  keep  a 
standing  army  even  without  the  consent  of  parliament. 

But  before  the  Bill  of  Rights  the  first  Mutiny  Act  had 
already  been  passed  (i  William  &  Mary,  c.  5).  The  troops 
favourable  to  James  were  to  be  shipped  off  to  the  Low  Countries. 
When  they  reached  Ipswich  a  mutiny  broke  out.  It  was 

1  Clode,  Military  Forces  of  the  Crown,  vol.  I,  p.  477. 


rv  The  First  Mutiny  Act  329 

necessary  to  take  rapid  action,  and  a  bill  was  hurriedly  passed 
through  parliament.  It  is  a  very  brief  affair  to  this  effect : 
any  soldier  in  the  king's  service  who  shall  excite  or  join  in 
any  mutiny  or  sedition  in  the  army  or  shall  desert  shall  suffer 
death  or  such  other  punishment  as  by  a  court  martial  shall 
be  inflicted.  Then  follow  a  few  sentences  as  to  the  constitu- 
tion of  courts  martial.  It  is  provided  that  nothing  in  this  act 
shall  exempt  any  officer  or  soldier  from  the  ordinary  process 
of  law ;  also  that  it  shall  not  affect  the  militia  forces,  that  it 
shall  only  be  in  force  until  the  loth  Nov.  next,  that  is  for  about 
half-a-year,  that  nine  out  of  thirteen  officers  constituting  a 
court  martial  must  agree  in  passing  sentence  of  death.  That 
is  the  whole  sum  and  substance  of  the  first  mutiny  act.  The 
only  crimes  that  it  sends  to  a  court  martial  are  mutiny, 
sedition,  desertion  ;  and  in  no  case  is  an  officer  or  soldier 
exempted  from  the  ordinary  law.  It  should  be  added  that 
though  parliament  was  in  haste,  it  was  careful  to  state  in  the 
preamble  that  the  raising  or  keeping  a  standing  army  within 
this  kingdom  in  time  of  peace,  unless  it  be  with  consent  of 
parliament,  is  against  the  law.  Also  that  no  man  may  be 
forejudged  of  life  or  limb  or  subjected  to  any  kind  of  martial 
law,  or  in  any  other  manner  than  by  the  judgment  of  his 
peers,  and  according  to  the  known  and  established  laws  of 
this  realm.  By  this  time  of  course  it  was  the  orthodox  belief 
of  all  men  that  trial  by  jury  was  \\\e  judicium  parium  of  the 
Great  Charter. 

From  this  time  forward  it  became  the  regular  practice  to 
pass  temporary  mutiny  acts.  For  a  while  this  was  not  done 
with  perfect  regularity.  On  several  occasions  during  the 
reigns  of  William  and  Anne  there  was  for  a  few  months  no 
mutiny  act  in  force.  Sometimes  on  the  other  hand  the  act 
was  to  endure  for  two  years.  But  very  soon  the  practice 
became  settled  of  passing  the  act  for  one  year  only  and  of 
passing  such  an  act  in  every  year.  All  along  through  the 
last  century  it  was  regarded  as  something  exceptional,  an 
evil  of  which  we  should  get  rid,  if  once  we  had  a  settled 
peace.  And  so  for  two  centuries,  year  by  year,  the  statute 
book  was  burdened  by  annual  mutiny  acts  which  always 
tended  to  become  longer  and  longer. 


PERIOD    V. 

SKETCH  OF  PUBLIC  LAW  AT  THE  PRESENT  DAY. 

1887-8. 

Preliminary. 

ON  passing  to  our  new  point  of  view,  it  at  once  strikes 
us  that  our  horizon  is  enormously  widened.  The  parliament 
sitting  at  Westminster  is  no  longer  the  parliament  of  England, 
it  is  the  parliament  of  Great  Britain  and  Ireland.  But  even 
this,  its  title,  does  not  express  the  whole  of  the  vast  territory 
which  is  subject  to  its  legislative  power.  It  can  make  laws 
for  the  whole  of  that  huge  collection  of  lands  which  it  is 
convenient  to  call  the  British  Empire,  but  which  we  must 
formally  style  the  United  Kingdom  of  Great  Britain  and 
Ireland,  its  colonies  and  dependencies. 

Let  us  very  briefly  recount  the  stages  whereby  new  lands 
have  been  brought  into  connexion  with  that  system,  the  history 
of  which  we  have  been  tracing,  and  let  us  note  the  legal  bonds 
which  bind  these  lands  together. 

First  as  regards  Wales.  Its  incorporation  in  the  realm  of 
England  is  an  old  story,  partly  accomplished  by  Edward  I, 
partly  by  Henry  VIII.  The  great  monuments  are  the 
Statntum  Walliae  of  1284,  which  declared  that  Wales  was 
not  merely  a  feudal  dependency  of  the  English  throne  but 
was  annexed  to  England  tamquam  pars  corporis  ejusdem,  and 
the  statute  of  1535  which  provided  seats  in  parliament  for 
representatives  of  the  Welsh  counties  and  boroughs  and  intro- 
duced the  whole  body  of  English  law  into  Wales.  So 
thoroughly  had  Wales  become  a  part  of  England  that  a 
statute  of  ^L742LJ^^  down  the  rule  that  in  acts  of  parliament 
the  name  EnglancfsEouId'be  deemed  to  include  Wales. 


PERIOD  V         Union  with  Scotland  331 

On  the  death  of  Elizabeth  King  James  VI  of  Scotland 
became  King  James  I  of  England ;  but  there  was  no  union  of 
the  two  countries;  they  had  nothing  in  common  but  their 
king ;  the  parliament,  aft  WJ5?tm*nqfc*r  could  not  make  laws 
for  Scotland,  nor  could  the  parliament  at  Edinburgh  make 
laws  for  England.  The  English  judges  did  indeed  hold  in 
Calvin's  case,  1608,  that  a  person  born  in  Scotland  after  James 
had  become  king  of  England  was  not  an  alien  in  England, 
nor  subject  to  the  many  disabilities  to  which  aliens  were  then 
subject,  in  particular  the  inability  to  hold  English  land.  But 
still  the  two  nations  were  two  distingt  nations  with  two 
governments.  James  himself  wished  for  a  closer  union;  he, 
wanted  to  be  king  of  Great  Britain  ;  but  his  subjects  were 
not  prepared  for  this — he  was  merely  king  of  England  and 
king  of  Scotland.  Under  the  Protectorate  a  closer  union 
was  realised ;  the  Restoration,  however,  brought  back  the 
old  state  of  affairs ;  Charles  was  king  of  England  and  king  of 
Scotland. 

The  union  _  was  (effected  on  I  May,  1707.  Queen  Anne 
became  queen  of  Great  Britain.  The  Act  of  Union  provided 
that  the  two  kingdoms  should  become  one  kingdom  by  the 
name  of  Great  Britain,  and  that  there  should  be  not  only  one 
king,  butane  parliament  for  the  two.  Sixteen  of  the  Scottish 
peers  were  to  be  chosen  by  their  fellows  to  represent  the 
Scottish  peerage  in  every  parliament ;  and  the  Scottish  shires 
and  boroughs  were  to  send  forty-five  members.  The  two 
lands,  the  two  nations,  were  subjected  immediately  to  the 
same  supreme  legislative  assembly ;  the  English  parliament 
ceased  to  exist;  the  Scottish  parliament  ceased  to  exist; 
there  was  a  parliament  of  Great  Britain.  It  became  and  is 
to  this  day  the  established  rule  that  every  act  of  this  parlia- 
ment applies  to  both  England  and  Scotland.  If  an  act  is 
not  to  apply  to  Scotland,  the  act  says  so  expressly;  if  it  is 
only  to  apply  to  Scotland,  it  says  so  expressly. 

This,  however,  does  not  imply  that  the  two  countries 
became  subject  to  the  same  laws.  England  kept  and  still 
keeps  her  common  law  in  so  far  as  it  has  not  been  abrogated 
by  statute;  and  English  statutes  passed  before  the  Union 
are  still  in  force  in  England  in  so  far  as  they  have  not  been 


332  Constitutional  History  PERIOD 

abrogated  by  later  statutes.  To  the  same  extent  Scotland 
keeps  her  own  common  law  and  her  own  old  statutes.  And 
Scottish  law  differs  considerably  from  English  law.  In 
particular,  as  regards  private  law,  the  Scots  attribute  an 
authority  to  Roman  law  which  it  does  not  enjoy  on  this  side 
the  border.  In  the  sixteenth  century  it  had  obtained  a  footing 
in  Scotland,  while  from  England  it  had  been  excluded  owing  to 
the  early  concentration  of  justice  in  our  king's  courts  and  the 
activity  of  our  ancient  parliaments1.  So  the  Scots  retained 
and  retain  to  this  day  a  system  of  courts  which  is  very  different 
from  the  English.  Still  since  1707  the  two  countries  have 
been  subject  to  one  legislative  body,  fully  competent  to 
modify  or  to  abrogate  any  rules  whether  of  Scottish  or  of 
English  law. 

The  Act  of  Union  laid  down  certain  rules  as  '  fundamental 
and  essential  conditions  of  the  union/  Of  these  the  most 
important  related  to  the  two  churches  of  Scotland  and 
England ;  their  doctrines  and  discipline  as  established  by 
law  were  to  be  inviolably  preserved,  and  each  king  on  his 
accession  was  to  swear  to  maintain  them.  The  fundamental 
and  essential  character  of  these  provisions  is  insisted  on  with  so 
much  emphasis  that  we  may  say  that  the  act  goes  near  to  an 
attempt  to  make  law  which  no  future  parliament  shall  alter — 
goes  near  to  such  an  attempt,  but  is  not  definitely  guilty  of  it. 
It  soon  became  the  established  doctrine  that  these  provisions, 
like  every  other  part  of  the  law  of  England  and  Scotland, 
could  be  repealed  by  the  parliament  of  the  United  Kingdom. 
Blackstone  writing  some  fifty  years  after  the  union  says  this 
distinctly — '  An  act  of  parliament  to  repeal  or  alter  the  Act 
of  Uniformity  in  England,  or  to  establish  episcopacy  in 
Scotland,  would  doubtless  in  point  of  authority  be  sufficiently 
valid  and  binding;  and  notwithstanding  such  an  act  the  union 
would  continue  unbroken2/  We  have  no  irrepealable  laws; 
all  laws  may  be  repealed  by  the  ordinary  legislature,  even 
the  conditions  upon  which  the  English  and  Scottish  parlia- 
ments agreed  to  merge  themselves  in  the  parliament  of  Great 
Britain. 

J  See  Maitland,  English  Law  and  the  Renaissance^  Cambridge,  1901. 
2  Commentaries  %  Introduction,  §  4  note. 


V  The  Irish  Parliament  333 

To  Irish  history  let  us  devote  some  little  time.  In  1169 
some  English  or  Norman  barons,  Robert  Fitzstephen,  Maurice 
Fitzgerald,  Richard  de  Clare,  known  as  Strongbow,  landed  in 
Ireland,  and  began  to  take  part  in  the  quarrels  of  the  Irish 
chieftains.  Henry  II,  fearing  the  establishment  of  an  inde- 
pendent Norman  state  across  St  George's  channel,  went  thither 
himself  and  obtained  a  submission  from  the  barons  and  the 
Irish  chiefs:  they  did  homage  to  him.  An  English  settlement 
was  formed  in  the  eastern  part  of  the  island.  It  was  divided 
into  counties;  the  king  granted  charters  to  its  boroughs,  he 
appointed  sheriffs  and  justices  of  assize.  John  took  the  title 
of  dominus  Hiberniae.  The  English  settlement  was  regarded 
as  subject  to  the  English  common  law,  and  so  soon  as  John 
granted  the  Great  Charter  at  Runnymede,  it  was  sent  over  to 
Ireland  and  published  there1.  The  growth  of  a  parliamentary 
constitution  in  Ireland,  i.e.  among  the  English  settlers,  was 
parallel  to  the  growth  in  England.  In  1295  knights  of  the 
shire  are  returned  to  a  parliament  held  by  the  viceroy ; 
burgesses  appear  there,  though  not  it  is  said  until  Edward  Ill's 
reign.  We  have  Irish  statutes  of  1310,  but  from  that  year 
they  are  lost  until  1429*.  The  colony,  however,  constantly 
shrank — the  colonists  were  constantly  falling  away  into  the 
barbarism  of  the  native  Irish  tribes.  The  authority  of  the 
English  king  over  Ireland  reached  at  length  its  lowest  point 
in  the  reign  of  Henry  VII,  when  it  was  confined  to  the  four 
counties  of  '  the  pale/  Dublin,  Louth,  Kildare  and  Meath 
and  a  few  seaport  towns.  The  Anglo-Irish  had  taken  the 
part  of  the  House  of  York  and  had  endangered  Henry's  crown 
by  supporting  pretenders.  In  1495  he  obtained  from  the 
Irish  parliament  a  statute  known  by  the  name  of  his  viceroy 
as  Poynings*  law.  It  provided  that  the  statutes  ' lately'  made 
by  the  English  parliament  should  hold  good  in  Ireland. 
Whatever  may  have  been  the  meaning  of  the  word  '  lately/ 
the  construction  put  upon  it  was  that  all  English  statutes 

1  For  the  'solemn  and  authoritative  introduction  into  Ireland  of  the  English 
system  of  procedure '  in  1227  see  Maitland  in  EngL  Hist.  Rev.  July  1889,  pp.  516 — 18. 

2  Record  however  exists  of  legislation  for  1297,  1320,  1324,  1351,  1366,  1394, 
1402,    1409 — 10,  see  Statutes  and  Ordinances  and  Acts  of  tfo  Parliament  of 
Ireland,  ed.  H.  F.  Berry,  Dublin,  1907. 


334  Constitutional  History  PERIOD 

earlier  in  date  than  Poynings'  Act  were  law  in  Ireland.  It 
also  provided  that  ho  parliament  should  be  held  in  Ireland 
until  the  viceroy  should  have  certified  to  the  king  all  such 
acts  as  were  to  be  passed,  and  such  acts  had  been  confirmed 
by  the  king  and  his  council.  Thus  the  king  and  his  English 
privy  council  obtained  a  check  upon  all  proposals  for  legis- 
lation in  Ireland.  Thenceforward  the  authority  of  the  king 
began  slowly  to  revive  and  extend  itself.  In  1541  Henry  VIII 
abandoned  the  old  title  Lord  of  Ireland  for  that  of  King  of 
Ireland ;  he  was  also  Supreme  Head  on  Earth  of  the  Church 
of  Ireland.  The  attempt  of  Elizabeth  to  force  the  reformed 
English  liturgy  upon  a  country  in  which  the  Protestant 
doctrines  had  made  no  way  led  to  rebellions,  the  rebellions 
to  repression.  The  power  of  James  I  was  at  least  nominally 
acknowledged  throughout  the  whole  island.  It  was  all  divided 
into  shires ;  the  franchise  was  given  to  many  boroughs,  the 
number  of  members  in  the  commons'  house  was  brought  up 
to  232  in  1613.  Unfortunately  the  English  persisted  in  the 
attempt  to  force  a  new  religion  upon  the  country,  and  vast 
tracts  of  land  which  had  been  forfeited  by  the  treason  of 
rebellious  lords  were  parcelled  out  among  English  colonists 
without  regard  for  the  rights  of  the  Irish  landowners.  There 
followed  the  rising  of  1641  and  the  terrible  reconquest  of  the 
country  by  Cromwell.  Vast  quantities  of  Irish  land  passed 
into  the  hands  of  the  Cromwellians,  and  at  the  Restoration 
many  of  their  titles  were  confirmed.  Under  James  II  the 
Catholic  Irish  very  naturally  took  the  king's  side ;  they  were 
again  repressed  by  William ;  and  then  there  was  another  great 
confiscation  and  redistribution  of  lands. 

During  the  reigns  of  William  and  Anne  the  severest  laws 
were  passed  by  the  Irish  parliament  for  the  suppression  of  the 
Catholic  religion.  Catholics  were  excluded  from  parliament, 
and  in  1715  were  deprived  of  the  electoral  franchise  which 
they  had  hitherto  exercised.  Meanwhile  a  dispute  broke  out 
as  to  the  relation  between  the  English  and  the  Irish  parlia- 
ments. That  Ireland  was  subject  to  the  king  there  was  no 
doubt ;  he  happened  to  be  king  of  England,  but  he  was  also 
king  of  Ireland — but  was  Ireland  subject  to  the  English 
parliament?  could  the  English  parliament  make  statutes  for 


V  Repeal  of  Poynings  Act  335 

Ireland  ?  The  dispute  becomes  prominent  under  William  III. 
The  English  parliament  passed  an  act  for  Ireland,  the  Irish 
parliament  reenacted  it  with  some  alterations.  The  English 
lawyers,  including  Coke,  had  for  some  time  past  argued  for 
the  supremacy  of  the  English  parliament.  The  medieval 
precedents  were  not  very  decisive.  The  English  theory  was 
this — that  Ireland  was  a  colony,  and  that  a  colony  was  subject 
to  the  legislature  of  the  mother  country.  This  general  doctrine 
was  indisputable  English  law — even  the  English  colonists  in 
America  admitted  that  in  a  general  way  they  were  subject  to 
the  parliament  at  Westminster,  though  they  were  soon  to  deny 
that  taxes  could  be  imposed  upon  them  by  the  English 
legislature.  The  proposition  that  Ireland  was  an  English 
colony  was  much  more  disputable.  In  1719  the  question  was 
brought  to  a  head  by  a  dispute  between  the  two  Houses  of 
Lords.  Each  asserted  its  right  to  act  as  a  court  which  could 
correct  the  errors  of  the  Irish  courts  of  law.  A  declaratory 
act  was  then  passed  (6  Geo.  I,  c.  5)  by  the  English  parlia- 
ment to  the  effect  that  the  English  parliament  has  full  power 
to  make  laws  to  bind  the  people  of  Ireland  and  that  the 
Irish  House  of  Lords  has  no  power  to  reverse  or  affirm  the 
judgments  of  the  Irish  courts.  This  act,  being  acquiesced  in, 
definitely  subordinated  the  Irish  to  the  English  parliament. 
Poynings'  Act  also  remained  unrepealed,  and  was  so  inter- 
preted that  the  parliament  had  little  more  than  a  power  of 
accepting  or  rejecting  the  proposals  of  the  crown. 

In  1782  the  act  of  1719  was  repealed,  and  in  1783  the 
English  parliament  passed  a  statute  declaring  that  the  right 
of  the  people  of  Ireland  to  be  bound  only  by  laws  enacted  by 
the  king  and  the  Irish  parliament  is  established,  and  shall  at 
no  time  hereafter  be  questioned  or  questionable.  No  appeals 
were  to  be  brought  from  the  Irish  to  any  English  courts. 
Poynings'  law  also  was  repealed  by  the  Irish  parliament  For 
eighteen  years  Ireland  was  no  more  subject  to  England  than 
was  England  to  Ireland.  The  causes  of  this  concession  of 
Irish  independence,  and  of  the  union  of  1800,  lie  beyond  our 
domain :  but  understand  that  it  was  the  union  of  two  inde- 
pendent kingdoms,  not  the  absorption  of  a  dependent  kingdom. 

The  union  took  effect  on   I  Jan.  1801.     There  was  no 


336  Constitutional  History  PERIOD 

longer  a  kingdom  of  Great  Britain  and  a  kingdom  of  Ireland ; 
there  was  a  United  Kingdom  of  Great  Britain  and  Ireland. 
So  again  there  was  a  parliament  for  the  United  Kingdom,  in 
which  the  Irish  peers  were  represented  by  twenty-eight  of 
their  number  chosen  by  them  for  life,  and  by  four  bishops  sitting 
according  to  a  scheme  of  rotation,  and  the  Irish  commons  by 
a  hundred  members.  Every  statute  of  this  parliament  applies 
to  the  whole  of  the  United  Kingdom  unless  some  part  of  it  is 
specially  excepted.  As  on  the  occasion  of  the  union  with 
Scotland,  articles  were  agreed  on  by  the  two  parliaments;  but 
these  articles  possess  no  particularly  essential  or  irrepealable 
nature.  This  we  may  see  from  the  fate  of  what  was  probably 
regarded  as  the  most  important  of  them — the  churches  of 
England  and  Ireland  were  united  in  one  church,  'The  United 
Church  of  England  and  Ireland/  and  the  continuance  of  this 
United  Church  was  declared  to  be  an  essential  and  fundamental 
part  of  the  union.  In  1869  the  union  of  the  two  churches  was 
dissolved,  and  the  Irish  church  was  declared  to  be  no  longer 
an  established  church. 

The  laws  in  force  in  Ireland  differ  from  those  in  force  in 
England,  but  the  differences  are  not  so  great  as  those  which 
separate  English  from  Scottish  law.  The  acts  of  the  Irish 
parliament  are  still  in  force  in  so  far  as  they  have  not  been 
repealed  by  statutes  of  the  United  Kingdom ;  but  the  basis 
of  Irish  law  is  English  common  law,  which  has  been  received 
ever  since  the  days  of  Henry  VIII.  In  one  respect  Ireland  is 
kept  a  little  more  distinct  from  England  than  is  Scotland. 
From  the  earliest  time  the  king  has  had  a  representative  in 
Ireland,  a  viceroy,  lord-deputy,  or  lord-lieutenant,  and  the  lord- 
lieutenant  has  had  a  council  corresponding  to  the  council  of 
the  English  king.  In  1 800  these  institutions  were  not  destroyed 
— there  still  is  a  lord-lieutenant,  and  he  has  a  council ;  prac- 
tically, however,  this  does  not  mean  any  great  degree  of 
separation  ;  the  executive  government  of  Ireland  like  that 
of  England  and  of  Scotland  is  de  facto  under  the  control  of  the 
cabinet.  Just  at  one  point,  and  that  the  highest,  the  judicial 
constitutions  of  the  three  countries  are  united.  The  House 
of  Lords  serves  as  a  court  of  last  resort  for  English,  Irish  and 
Scottish  cases. 


V  The  Channel  Islands  337 

The  Isle  of  Man  and  the  Channel  Islands  are  not  parts  of 
the  United  Kingdom,  though  king  and  parliament  can  make 
laws  for  them.  The  statutes  made  by  parliament  do  not 
affect  them  unless  they  are  specially  mentioned,  or  it  is  evident 
from  the  context  that  they  were  within  the  purview  of  the 
legislature.  The  appeal  from  their  courts  is  not  to  the  House 
of  Lords,  but  to  the  King  in  Council.  The  interest  of  these 
small  dependencies  lies  in  this,  that  the  relation  between  them 
and  England  formed  a  precedent  for  the  treatment  of  the 
vaster  dependencies  which  have  gradually,  collected  round  the 
United  Kingdom. 

As  regards  these  greater  dependencies,  we  can  say  but 
little ;  we  may,  however,  apprehend  certain  very  general  prin- 
ciples. First  we  have  to  note  a  distinction  as  to  the  mode  in 
which  territories  have  been  acquired — we  must  distinguish 
colonization  on  the  one  hand  from  cession  or  conquest  on  the 
other.  When  a  new  country  is  colonized  by  Englishmen,  they 
are  conceived  to  carry  with  them  all  such  part  of  the  English 
common  law  and  all  such  existing  statutes  as  are  applicable 
to  their  circumstances ;  to  distinguish  what  is  and  what  is  not 
applicable  is  the  work  of  the  courts  which  the  king  may 
establish  among  them,  an  appeal  lying  from  thosfc  courts  to 
the  King  in  Council.  The  king  cannot  legislate  for  them  ;  on 
the  other  hand,  king  and  parliament  can  legislate  for  them  ; 
but  the  presumption  is  that  a  statute  applies  only  to  the 
United  Kingdom,  it  does  not  extend  to  the  colonies  unless 
they  are  mentioned  or  it  is  plain  that  the  statute  was  meant 
for  them.  As  regards  territories  conquered  by  the  king's 
armies  or  ceded  to  him  by  a  foreign  power,  the  act  of  con- 
quest or  cession  does  not  alter  their  law.  The  king  can 
legislate  for  them  and  a  fortiori  the  king  in  parliament  can 
legislate  for  them — but  they  retain  their  old  law,  French  or 
Spanish  or  Dutch  or  whatever  it  may  be,  until  new  laws  are 
made  for  them  by  the  king  with  or  without  the  concurrence 
of  parliament  The  king  also  may  grant  to  them  repre- 
sentative institutions  of  their  own — may  establish  in  them 
legislative  assemblies — and  when  such  a  grant  has  been  made 
he  cannot  revoke  it.  Over  all  these  territories  however  obtained, 
whether  by  colonization  or  cession  or  conquest,  whether  they 

M,  22 


338  Constitutional  History  PERIOD 

have  representative  assemblies  of  their  own  or  no,  king  and 
parliament  are  supreme ;  but  it  is  not  considered  that  a  statute 
applies  to  them  unless  the  intention  of  the  legislature  that  it 
should  do  so  appears  on  the  face  of  the  statute.  The  dis- 
tinction as  to  the  mode  of  acquisition  affects  not  the  ultimate 
supremacy  of  king  and  parliament,  but  the  power  of  the  king 
to  make  laws  without  the  consent  of  parliament — in  a  land 
obtained  by  cession  or  conquest  he  can  make  laws  unless 
statute  has  said  that  he  cannot :  in  what  in  the  strictest  sense 
is  a  '  colony '  he  has  no  such  power. 

As  is  well  known,  it  was  the  attempt  of  the  British 
parliament  to  tax  the  American  Colonies  which  led  to  the 
War  of  Independence  and  the  formation  of  the  United  States. 
Already  in  1766  we  have  an  act  (6  Geo.  Ill,  c.  12)  which 
recites  that  several  of  the  houses  of  representatives  in  His 
Majesty's  colonies  and  plantations  in  America  "  have  of  late, 
against  law,  claimed  to  themselves  the  sole  and  exclusive  right 
of  imposing  taxes  upon  His  Majesty's  subjects  in  the  said 
colonies  and  plantations  " :  it  is  then  declared  that  "  the  said 
colonies  and  plantations  in  America  have  been,  are,  and  of 
right  ought  to  be  subordinate  unto,  and  dependent  upon  the 
imperial  crown  and  parliament  of  Great  Britain";  and  that  the 
king  and  parliament  of  Great  Britain  have  and  of  right  ought 
to  have  full  power  and  authority  to  make  laws  and  statutes  to 
bind  the  colonies  and  people  of  America  in  all  cases  whatsoever. 
I  believe  that  I  am  right  in  saying  that  the  colonists  did  not 
deny  the  general  rule  that  the  British  parliament  might  legis- 
late for  them,  but  disputed  only  its  right  to  tax  them.  The 
British  parliament  did  not  abandon  its  claim  until  it  was  forced 
to  acknowledge  that  the  United  States  were  free,  sovereign, 
and  independent :  though  during  the  progress  of  the  struggle 
it  promised  by  an  act  of  1778  (18  Geo.  Ill,  c.  12)  that  it  would 
not  tax  North  America  or  the  West  Indies  for  the  purpose  of 
obtaining  a  revenue.  The  adverse  issue  of  the  war  with  the 
United  States  did  not  lead  to  any  abandonment  of  the  general 
principle.  Our  parliament  claims  to  legislate  for  all  lands 
which  are  subject  to  the  crown  of  Great  Britain,  and  the  claim 
is  no  idle  claim.  To  give  but  one  instance,  an  instance  on  a 
great  scale;  in  1833  by  an  act  of  the  parliament  of  the  United 


V  Colonial  Constitutions  339 

Kingdom  (3  and  4  Will.  IV,  c.  73)  slavery  was  abolished 
throughout  the  colonies ;  and  though  compensation  was  pro- 
vided for  the  slave  owners,  this  of  course  was  a  vast  interference 
with  the  rights  of  private  property.  From  time  to  time 
parliament  makes  laws  for  the  colonies,  thus  the  Copyright 
Act  extends  to  them.  The  presumption  of  the  court^  as 
already  said,  is  that  a  statute  does  not  extend  to  them,  anJ 
therefore  if  parliament  does  mean  to  legislate  for  them,  it 
generally  says  so  in  so  many  words.  Even  the  right  or  power 
to  impose  taxes  has  never  been  abandoned,  though  it  is  not 
exercised.  Students  of  Austin's  Jurisprudence  may  find  some 
interest  in  noticing  this  case :  the  sovereign  body  habitually 
refrains  from  making  la\ys  of  a  certain  class  and  must  suspect 
that  if  it  made  such  laws  they  would  not  be  obeyed. 

As  to  the  constitutions  of  the  colonies.  Subject  to  the 
general  power  of  the  British  parliament  there  is  considerable 
variety — for  some  the  king  can  legislate,  others  have  repre- 
sentative assemblies  of  their  own.  In  these  last  the  consti- 
tutional organization  is  modelled  after  that  of  the  mother 
country — a  royal  governor  represents  the  king,  and  the 
legislative  assembly  consists  of  two  houses ;  but  the  upper 
house  is  not,  like  our  House  of  Lords,  a  hereditary  assembly. 
Their  acts  require  the  assent  of  the  governor  as  representing 
the  crown — this  gives  them  a  temporary  validity — but  they 
are  liable  to  be  disallowed  by  an  order  of  the  King  in  Council ; 
not  being  sovereign,  their  legislative  powers  are  limited  :  their 
statutes  may  be  void.  In  this  they  differ  from  the  statutes  of 
the  parliament  of  the  United  Kingdom,  which  cannot  be  void. 
However  (at  least  in  general)  no  attempt  has  been  made  to 
enumerate  or  specify  the  subjects  about  which  a  colonial 
legislature  may  legislate,  or  may  not  legislate.  The  general 
rule  is  laid  down  by  an  act  of  1865  (28  and  29  Vic.,  c.  63): 
every  law  made  by  a  colonial  legislature  is  valid  tor  the  colony 
except  in  so  tar  as  it  is  repugnant  to  any  act  of  parliament 
extending  to  the  colony.  This  gives  the  colonial  legislatures 
liberal  powers;  for  the  number  of  acts  of  parliament  which 
extend  to  the  colonies  is  not  very  great.  Still  a  colonial 
judge  or  (on  appeal)  the  judicial  committee  of  the  Privy 
Council  may  have  to  say  '  this  colonial  act  is  void,  for  it  is 

22 —  2 


340  Constitutional  History  PERIOD 

repugnant  to  an  act  of  parliament  which  extends  to  the 
colony/ 

As  to  the  laws  in  force  in  the  colonies,  of  course  they  vary 
greatly.  In  most  of  them  the  basis  is  English  common  law  ; 
but  in  some  it  is  French  law,  in  others  Roman-Dutch  law, 
that  is  to  say,  Roman  law  as  expounded  by  the  jurists  of 
Holland.  Past  history  decides  this  matter :  territories  acquired 
by  conquest  or  cession  from  foreign  states  have  generally  been 
allowed  to  keep  their  old  laws.  Then  on  the  top  of  this  basis 
of  common  law,  whatever  it  may  be,  come  those  acts  of  the 
British  parliament  which  affect  the  colony,  and  the  acts  of 
the  colonial  legislature. 

The  Judicial  Committee  of  thq,  Privy  Council  (of  the 
constitution  of  which  hereafter)  is  the  supreme  court  of 
appeal  for  all  the  king's  lands  outside  the  United  Kingdom. 
The  business  that  comes  before  it  is  of  the  most  miscellaneous 
character;  the  world  has  never  seen  a  tribunal  with  such  world- 
wide powers.  It  has  to  administer  Mohammedan  law  and 
Hindoo  law,  French  law,  Dutch  law,  English  law ;  it  has 
often  to  consider  whether  the  legislative  acts  of  colonial 
legislatures  are  valid  or  invalid,  for  instance,  it  may  have  to 
say  that  a  statute  of  the  Canadian  parliament  is  invalid  as 
repugnant  to  a  statute  which  the  parliament  of  the  United 
Kingdom  has  made  for  Canada. 

It  is  impossible  in  a  few  words  to  say  much  that  is  profit- 
able about  India,  only  let  us  remember  this:  that  the  parlia- 
ment of  the  United  Kingdom  which  we  are  about  to  describe 
is  supreme  over  India,  can,  and  in  matters  of  the  highest 
importance  sometimes  does,  legislate  for  India. 

In  speaking1  then  of  king  and  parliament  we  are  no  longer 
speaking  of  what  in  strictness  of  language  are  merely  English 
institutions;  the  parliament  represents  the  United  Kingdom, 
and  king  and  parliament  have  supreme  legislative  power  over 
territories  which  lie  in  every  quarter  of  the  globe.  Of  this 
parliament  we  must  speak.  Below  it  there  are  many  institu- 
tions, some  of  which  are  specifically  English,  specifically 
Scottish,  Irish,  Canadian,  Australian,  Indian ;  for  example, 
the  judicial  systems  of  England,  Ireland  and  Scotland  are 
distinct  from  each  other,  though  at  the  supreme  point  they 


V  Nationality  and  Domicile  341 

unite  in  the  House  of  Lords.  It  is  of  great  importance  to 
distinguish  those  institutions  which  like  the  kingship  and 
the  parliament  are  (we  can  hardly  avoid  the  term)  imperial 
institutions,  from  those  which  like  the  High  Court  of  Justice 
are  specifically  English,  and  I  strongly  advise  you  not  to  use 
the  words  England  and  English  when  you  mean  what  is  larger 
than  England  and  more  than  English.  When  we  have  dealt 
with  the  institutions  which  have  power  over  all  the  British 
dominions,  we  shall,  being  Englishmen  in  an  English  uni- 
versity, deal  with  some  purely  English  institutions,  as  with 
the  High  Court  of  Justice,  not  with  the  Scottish  Court  of 
Sessions — but  let  us  keep  this  distinction  firmly  in  our  minds  ; 
if  we  are  Englishmen,  we  are  also  subjects  of  a  sovereign 
whose  power  extends  over  millions  and  millions  of  men  who 
are  not  English.  - 

Let  me  illustrate  this  by  one  further  remark.  There  arc 
two  conceptions  which  are  of  great  importance  to  students  of 
international  law:  the  one  nationality,  the  other  domicile. 
Now  there  is  no  such  thing  as  English  nationality,  and  there  is 
no  such  thing  as  British  domicile.  The  Englishman,  the  Scot, 
the  Irishman,  the  Canadian,  the  Australian — all  of  these  have 
a  nationality  in  common  ;  if  there  be  war  between  the  United 
Kingdom  and  a  foreign  power,  say  France,  all  of  them  are 
enemies  of  the  French,  any  of  theiji  who  side  with  the  French 
are  traitors.  But  there  is  no  such  thing  as  British  domicile — 
because  there  is  no  one  system  of  private  law  common  to  all 
the  British  dominions ;  a  man  is  domiciled  in  England  or 
Scotland  or  New  Zealand,  and  to  a  very  large  extent  the  law 
under  which  he  lives  varies  with  his  place  of  domicile.  If 
I  abandon  my  English  domicile,  and  become  domiciled  in 
Scotland,  this  will  have  most  important  legal  results  for  me, 
but  my  nationality  remains  what  it  was.  So  by  England  let 
us  mean  England,  a  land  which  consists  of  fifty-two  counties. 

There  is  another  distinction  which  we  must  now  keep 
constantly  in  view:  we  are  lawyers  dealing  with  law,  but 
an  account  of  our  present  mode  of  government  which  spoke 
only  of  legal  rules  would  be  an  extremely  inadequate  and 
indeed  a  quite  unintelligible  account.  To  take  the  capital 
instance :  everyone  knows  that  the  constitution  of  the  cabinet 


342  Constitutional  History  PERIOD 

is  a  matter  of  the  utmost  importance — indeed  a  great  part  of 
our  political  life  is  determined  by  the  constitution  of  the 
cabinet  for  the  time  being — but  most  people  know  and  every- 
one ought  to  know  that  the  cabinet  is  a  body  unknown  to 
the  law:  as  a  body  it  has  no  legal  powers,  rights  or  duties. 
We  have  then  to  distinguish  at  every  step  what  is  matter  of 
law,  from  what  is  not  matter  of  law,  from  what  is  matter  of 
custom  or  convention.  The  two  are  intimately  intertwined; 
as  Mr  Dicey  has  shown  in  his  excellent  lectures  on  the 
Constitution1  (which  I  take  this  opportunity  of  strongly  recom- 
mending to  your  notice)  the  customs  or  conventions  of  our 
constitution  derive  their  force,  a  force  which  is  often  felt  to  be 
quite  as  strong  as  the  force  of  law,  from  the  fact  that  they  are 
so  much  mixed  up  with  law  that  they  could  hardly  be  violated 
without  a  violation  of  law.  We  must  therefore  keep  this  dis- 
tinction before  us,  and  whenever  we  come  to  a  rule  ask 
ourselves  whether  it  be  law  or  no,  ask  ourselves  what  would 
happen  if  it  were  broken — would  anybody  be  punished,  and  if 
so  how,  or  would  there  merely  be  a  general  outcry  that  a 
departure  had  been  made  from  sound  constitutional  precedent? 
The  necessity  for  this  caution  is  due  in  a  large  measure  to 
our  careful  conservation  of  forms.  Our  queen  to-day  has  by 
law  almost  all  the  power  that  Henry  VII  had  by  law;  we 
know  that  as  a  matter  of  fact  our  present  kingship  is  radically 
different  from  the  kingship  of  the  fifteenth  century  ;  but  law 
has  done  little  to  take  away  powers  from  the  king.  When  we 
have  insured  by  indirect  methods  that  such  powers  shall  not 
be  exercised  without  the  approval  of  parliament,  we  have 
considered  that  enough  has  been  done — we  have  not  cared  to 
pass  a  statute  saying  in  so  many  words  that  such  powers 
have  ceased  to  exist.  Whatever  may  be  thought  of  the 
wisdom  of  this  course,  it  renders  the  task  of  lecturing  on  our 
modern  constitution  a  very  difficult  task.  One  is  constantly 
brought  face  to  face  with  the  question — what  is  it  lawful  for 
the  king  to  do  ?  what  might  he  not  lawfully  do  if  he  wished 
to  go  as  near  as  possible  to  breaking  the  law?  To  find  an 
answer  is  often  hard  or  impossible.  Since  the  Revolution  our 

1  Lectures  Introductory  to  the  Study  of  the  Law  of  the   Constitution  by 
A.  V.  Dicey,  6th  ed.     London,  1902. 


V        Vague  limits  of  Royal  Prerogative    343 

kings  have  seldom  gone  near  to  breaking  the  law  in  serious 
matters — by  all  manner  of  indirect  means  they  have  been 
practically  restrained  from  breaking  the  law,  therefore  we 
have  no  modern  precedents,  and  are  thrown  back  on  ancient 
precedents,  the  applicability  of  which  to  the  changed  circum- 
stances of  modern  times  can  often  be  very  plausibly  disputed. 
The  law  then  as  to  the  extent  of  the  royal  prerogative  in  many 
directions  is  often  very  vague,  and  often  we  have  to  solace 
ourselves  with  the  reflection  that  any  attempt  to  exercise  the 
prerogative  in  these  directions  is  extremely  improbable. 

A.     The  Sovereign  Body. 

I.     The  Kingship. 

The  succession  to  the  throne  is  settled  by  the  Act_of 
Settlement  upon  the  heirs  of  the  body  of  the  Electress  Sophia, 
being  protestants.  It  is  needless  to  say  that  under  these 
terms  a  woman  can  succeed.  A  queen  has  all  the  powers  of 
a  king.  The  husband  of  a  reigning  queen  has  no  powers, 
he  is  not  king  unless  an  act  of  parliament  makes  him  so. 
Philip  of  Spain,  Mary's  husband,  bore  the  title  of  king,  Anne's 
husband  was  simply  Prince  George  of  Denmark.  Queen 
Victoria's  husband  was  simply  Prince  Albert  of  Saxe-Coburg- 
Gotha  until  1857  when  the  queen  conferred  on  him  the  title 
of  Prince  Consort.  He  had  no  legal  powers. 

'The  king  never  dies/  in  other  words  under  the  Act  of 
Settlement,  and  for  some  centuries  before  it,  the  heir  begins  to 
reign  at  the  moment  of  the  ancestor's  death.  The  coronation 
therefore  does  not  seem  to  be  a  legally  necessary  ceremony. 
The  terms  of  the  coronation  oath  are  however  fixed  by 
statute — this  statute  passed  immediately  after  the  Revolution 
has  come  before  us  already1.  The  Act  of  Union  with  Scotland 
further  required  an  oath  to  maintain  the  two  established 
churches.  George  III  thought  that  this  oath  stood  in  the  way 
of  his  giving  his  assent  to  a  bill  removing  the  disabilities  of 
the  Roman  Catholics ;  but  it  seems  only  intended  to  give 
a  religious  sanction  to  the  kind's  duty  of  maintaining  the 
churches  according  to  the  law  in  force  for  the  time  being, 

i  P.  ,87. 


344  Constittitional  History  PERIOD 

and  not  to  hamper  his  conscience  when  considering  a  pro- 
posed change  in  the  law  :  the  queen's  oath  did  not  stand  in 
the  way  of  the  disestablishment  of  the  Irish  Church.  The 
king  is  also  bound  by  the  Act  of  Settlement  either  at  his 
coronation  or  on  meeting  his  first  parliament,  whichever 
happens  first,  to  make  a  declaration  against  transubstantiation 
and  other  distinctively  Roman  doctrines  prescribed  by  the 
Act  of  Settlement  He  is  also  bound  by  the  Act  of  Settle- 
ment to  join  in  communion  with  the\ Church  of  England  as 
by  law  established.  He  forfeits  his  croXp  if  he  holds  com- 
munion with  thdf  Church  of  Rome,  professes  the  Popish 
religion,  or  marries  a  papist ;  the  crown  then  passes  as  if  he 
were  dead  to  the  next  heir.  There  is  no  clause  saying  that  he 
forfeits  the  crown  if  he  ceases  to  be  a  member  of  the  English 
Church,  if,  for  instance,  he  becomes  a  Weslcyan  Methodist. 

Under  the  Royal  Marriage  Act,  1772  (12  Geo.  Ill,  c.  n), 
the  marriage  of  any  descendant  of  George  II  is  invalid  unless 
the  royal  consent  has  been  obtained  ;  but  this  does  not  apply 
to  the  issue  of  princesses  married  into  foreign  families,  and  is 
subject  to  a  proviso  that  a  descendant  of  George  II  when 
of  the  age  of  twenty-five  may  signify  to  the  privy  council  his 
intention  of  marrying  without  the  king's  consent,  and  unless 
within  twelve  months  both  houses  of  parliament  object  to  the 
marriage,  then  he  may  lawfully  marry. 

There  is,  I  think,  no  way  in  which  a  reigning  king  can 
cease  to  reign  save  by  his  death,  by  holding  communion  with 
the  Church  of  Rome,  professing  the  Popish  religion  or  marry- 
ing a  Papist,  and  possibly  by  abdication.  I  cannot  regard 
the  events  of  1327,  1399  or  1688  as  legal  precedents.  I  can 
deduce  no  rule  of  law  from  them  :  they  seem  to  me  precedents 
for^a  revolution,  not  for  legal  action.  If  we  had  a  very  bad 
kffig,  we  should  very  probably  depose  him ;  but  unless  he 
consented  to  an  act  of  parliament  depriving  him  of  the  crown, 
the  deposition  would  be  a  revolution,  not  a  legal  process. 
Even  the  king's  power  to  abdicate,  except  by  giving  his 
assent  to  a  statute  declaring  his  abdication  may,  as  it  seems 
to  me,  be  doubted. 

For  the  case  of  an  infant  king  or  a  king  incapable  of 
transacting  business  our  common  law  makes  no  special  pro- 
vision. Its  doctrine  seems  to  be' that  the  king  is  never  under 


V  Infant  and  Incapable  Kings         345 

age  and  never  incapable :  he  can  always  give  his  assent  to 
acts  of  parliament.  This  doctrine  has  in  the  past  given  rise 
to  some  curious  fictitious  transactions  ;  but  ever  since  the  end 
of  the  Middle  Ages  a  royal  minority  has  always  been  foreseen 
and  provided  for  in  advance  by  statute.  Thus  in  1830  a 
statute  was  passed  (i  Will.  IV,  c.  2)  to  the  effect  that  if 
William  died  while  the  Princess  Victoria  was  under  the  age 
of  eighteen  years,  the  Duchess  of  Kent  was  until  the  queen 
reached  eighteen  years  to  be  her  guardian,  and  was  to  exercise 
all  the  royal  powers,  save  that  she  was  not  to  have  power  to 
assent  to  any  act  altering  the  Act  of  Settlement  or  the  Act 
of  Uniformity.  This  act  did  not  take  effect  because  the  queen 
had  attained  eighteen  before  her  uncle  died.  A  similar  act 
was  passed  in  1840,  making  Prince  Albert  regent  if  the  queen 
should  die  leaving  an  heir  under  the  age  of  eighteen,  the 
regency  to  continue  until  the  heir  should  be  eighteen.  There 
is  now  no  such  act  in  force,  and  there  is  no  immediate  necessity 
for  one.  It  seems  a  common  belief  that  a  king  attains  full 
age  at  eighteen  or  at  some  other  age  different  from  the  usual 
twenty-one  ;  but  this  is  a  mistake.  By  common  law  a  king 
is  never  under  age,  but  statutes  passed  on  various  occasions, 
none  of  which  are  now  in  force,  have  chosen  eighteen  as 
the  age  at  which  a  regency  shall  come  to  an  end.  For  an 
actual  case  of  regency  due  to  the  king's  infancy  we  have  to 
go  back  to  the  case  of  Edward  VI. 

Our  law  makes  no  provision  for  a  case  in  which  the  king  is 
disabled  from  transacting  business  by  mental  or  bodily  illness. 
The  question  arose  in  1788,  but  not  in  its  most  aggravated 
form  for  a  parliament  was  in  existence,  so  there  was  no  need 
to  decide  how  a  parliament  could  be  summoned.  Parliament 
was  in  existence  but  it  stood  prorogued,  and  accordingXo 
precedent  when  a  parliament  is  prorogued  it  cannot  proceed 
to  business  until  the  session  has  been  opened  either  by  the' 
king  in  person  or  by  commissioners  appointed  by  him.  On 
this  occasion  parliament  met  and  proceeded  to  discuss  what 
was  to  be  done.  Some  maintained  that  the  Prince  of  Wales 
(atterwards  George  IV)  had  a  right  or  at  least  a  legal  claim 
to  be  regent.  This  contention,  however,  in  accordance  with 
past  history  was  overruled — in  accordance  with  past  history, 


346  Constitutional  History  PERIOD 

for  the  precedent  of  Henry  VTs  infancy  might  be  regarded  as 
conclusive  of  this  point.  It  being  decided,  however,  that  the 
prince  was  to  be  regent  by  act  of  parliament,  the  question 
arose  how  such  an  act  could  be  passed.  The  Chancellor 
affixed  the  Great  Seal  to  a  commission  for  opening  parlia- 
ment ;  a  regency  bill  was  introduced,  and  it  was  intended 
that  the  royal  assent  should  be  fictitiously  given  to  this  bill 
by  commission  under  the  Great  Seal.  But  before  the  bill  was 
passed  the  king  recovered  and  no  further  proceedings  were 
necessary.  The  same  difficulty  occurred  again  in  1810.  The 
king  became  incapable,  this  time  for  good  and  all,  at  a 
moment  when  parliament  stood  prorogued.  The  precedent 
of  1788  was  followed.  The  Houses  agreed  that  the  parliament 
should  be  opened  by  commission  under  the  Great  Seal,  and 
the  Chancellor  affixed  it.  A  regency  bill  was  introduced  ;  it 
was  carried  through  both  houses,  and  a  fictitious  royal  assent 
was  given  to  it  by  commission  under  the  Great  Seal.  The 
commission  asserted  that  it  was  issued  by  the  king  himself, 
by  and  with  the  advice  of  the  lords  spiritual  and  temporal 
and  commons  in  parliament  assembled.  The  royal  authority 
was  to  be  exercised  by  the  Prince  of  Wales,  subject  to  certain 
restrictions  as  to  the  creation  of  peerages,  the  grant  of  offices 
and  the  like.  These  are  the  only  modern  precedents  for  the 
treatment  of  cases  for  which  our  common  law  makes  no 
provision.  Obviously  the  difficulty  would  be  greater  if  there 
were  no  parliament  in  existence. 

As  regards  'the  royal  family/  a  term  of  very  vague  import, 
there  is  little  to  be  said.  A  king's  wife,  a  king  or  queen's 
eldest  son  and  eldest  daughter,  and  the  wife  of  the  eldest  son, 
enjoy  a  certain  protection,  if  such  it  may  be  called,  under  the 
old  statute  of  Edward  III  defining  the  crime  of  high  treason. 
The  eldest  son  of  a  reigning  king  or  queen  is  born  a  peer  of 
the  realm,  he  is  born  Duke  of  Cornwall,  he  is  not  born  to  the 
title  of  Prince  of  Wales.  All  other  sons  and  daughters  of  the 
king  or  queen  are  born  commoners,  and  such  they  continu^ 
unless  and  until  peerages  are  conferred  upon  them.  A  certain 
honorary  precedence  is  given  to  certain  members  of  the  king's 
family  by  an  act  of  1539 — 31  Hen.  VIII,  c.  10 — an  act  for  the 
placing  of  lords,  but  this  is  a  trifle. 


V  The  Lords  Spiritual  347 

II.     The  House  of  Lords. 

The  House  of  Lords  at  present  consists  of  about  540 
members  and  is  thus  ten  times  as  large  as  under  the  Tudors1. 
First  as  to  the  bishops.  Two  archbishops  and  twenty-four 
bishops  have  seats  in  it  When  we  last  saw  it  all  the  English 
bishops  sat  there,  including  those  whose  sees  were  created  by 
Henry  VIII,  or  all  except  the  Bishop  of  Sodor  and  Man, 
who  has  never  had  a  seat,  and  whose  absence  is  accounted  for 
by  the  fact  that  in  times  past  he  was  not  a  bishop  of  the 
English  church;  it  was  only  under  Henry  VIII  that  his 
bishopric  was  made  part  of  the  province  of  York.  No  new 
see  was  created  until  1836  ;  in  that  year  the  see  of  Ripon  was 
created  by  Order  in  Council,  and  the  bishop  had  a  seat  in 
parliament,  but  at  the  same  time  the  two  sees  of  Gloucester  and 
Bristol  were  fused  together  so  that  the  number  of  bishops  was 
not  increased.  Manchester  was  created  under  act  of  parlia- 
ment in  1847,  Truro  and  S.  Albans  in  1877,  Liverpool  in  1880, 
Newcastle  in  1882,  and  Southwell  in  1883,  all  under  acts  of 
parliament  which  provided  that  the  number  of  bishops  having 
seats  in  the  House  of  Lords  should  not  thereby  be  increased3. 
The  statutory  rule  now  is  that  the  two  archbishops,  the  bishops 
of  London,  Durham  and  Winchester,  and  twenty-one  other 
bishops — the  first  in  order  of  seniority — have  seats,  the  others 
have  no  seats.  There  are  now  six  bishops  without  seats  ex- 
clusive of  the  Bishop  of  Sodor  and  Man  who  never  sits8. 

Between  1801  and  1869  under  the  Act  of  Union  the  Irish 
Church  was  represented  by  one  archbishop  and  three  bishops, 
who  sat  there  according  to  a  scheme  of  rotation. 

The  mode  of  making  bishops  remains  just  what  it  was  in 
Elizabeth's  time;  the  chapters  always  elect  the  royal  nominee; 
if  they  did  not  the  king  would  be  able  to  appoint  by  letters 
patent  under  the  act  of  Henry  VIII. 

1  The  number  in  Jan.  1913  was  636. 

*  Wakefield  was  created  in  1888,  Bristol  in  1897,  Birmingham  and  Southwark 
in  1904. 

8  There  are  now  (1913)  ten  bishops  exclusive  of  the  Bishop  of  Sodor  and  Man 
without  seats :  i.e.  Southwark,  Carlisle,  Worcester,  Gloucester,  LlandarT,  Rochester, 
Ely,  Truro,  Newcastle,  Chichestert 


348  Constitutional  History  PERIOD 

The  vast  increase  that  has  taken  place  in  the  House  of 
Lords  is  therefore  an  increase  in  the  number  of  temporal 
peers.  It  would  be  a  great  mistake  to  suppose  that  there  are 
many  very  ancient  peerages  in  existence.  Counting  English, 
Scottish,  and  Irish  peerages  there  are  not  a  hundred  which  can 
be  traced  as  far  as  the  Middle  Ages,  and  about  half  of  these 
have  been  merged  in  newer  and  higher  titles.  A  year  now 
seldom  goes  by  without  the  creation  of  half-a-dozen  new  peers. 
The  power  of  creating  new  peers  is  obviously  an  important 
engine  in  the  hands  of  a  minister.  During  the  last  century 
peerages  were  lavishly  created  for  political  purposes.  Under 
Anne  in  1711,  twelve  peerages  were  created  at  once  in  order  to 
secure  a  majority  in  the  House  of  Lords.  The  lords  resisted 
this,  and  by  the  peerage  bills  of  1719  and  1720  they  sought 
to  limit  the  king's  power  of  creating  new  peers  by  a  provision 
that  when  six  more  had  been  created  the  maximum  number 
was  to  be  reached.  The  king  himself  was  willing  to  consent 
to  this,  but  the  bill  was  rejected  by  a  large  majority  in  the 
House  of  Commons,  and  thus  a  great  change  in  our  constitu- 
tion was  averted.  In  much  more  recent  times  the  power  of 
creating  new  peers  has  been  used  for  a  great  end.  In  1832 
the  House  of  Lords  was  practically  coerced  into  the  passing 
of  the  Reform  Bill  by  the  knowledge  that  if  they  again 
rejected  it  the  king  was  prepared  to  consent  to  the  creation 
of  eighty  new  peerages.  Thus  a  threat  to  create  new  peerages 
may  be  a  potent  political  instrument;  but  for  obvious  reasons 
a  minister  would  shrink  from  using  it  save  in  an  extreme 
case — he  could  not  see  the  end  of  his  action ;  he  would  be 
creating  heritable  rights,  and  the  political  opinions  of  heirs 
are  not  always  those  of  their  ancestors.  For  centuries  past, 
as  we  have  seen,  the  invariable  mode  of  creating  peers  has 
been  by  letters  patent;  usually  they  confer  the  dignity  and 
the  consequent  right  to  a  writ  of  summons  on  the  grantee 
and  the  heirs  of  his  body,  but  occasionally  other  forms  of 
grant  are  adopted.  As  we  have  already  seen  in  1856  the 
House  of  Lords  maintained  that  the  grant  of  a  peerage  merely 
for  the  life  of  the  grantee  would  not  entitle  him  to  a  seat  in 
parliament:  that  was  the  result  of  the  Wensleydale  case.  A 
few  ancient  baronies  created  by  writ  are  still  in  existence. 


V  Scottish  and  Irish  Peers  349 

We  have  now  to  notice  that  a  peer  may  be  a  peer  of 
England  or  of  Scotland  or  of  Ireland  or  of  Great  Britain  or 
of  the  United  Kingdom.  When  Scotland  and  England  were 
united  Scotland  possessed  a  large  peerage  of  its  own.  There 
were,  I  think,  154  Scottish  peers  and  but  168  English1.  The 
plan  adopted  was  this — only  sixteen  Scottish  peers  were  to  sit 
in  the  House  of  Lords.  These  sixteen  were  to  be  elected  by 
the  whole  body  of  Scottish  peers  to  represent  them  for  a  single 
parliament.  All  the  Scottish  peers,  however,  were  to  enjoy 
the  other  privileges  of  peerage,  the  freedom  from  arrest  and 
the  right  to  be  tried  before  the  House  of  Lords.  Since  the 
Act  of  Union  the  king  has  not  been  able  to  create  a  purely 
Scottish  peer,  or  for  the  matter  of  that  a  purely  English  peer: 
the  peers  created  were  (if  not  peers  of  Ireland)  peers  of  Great 
Britain,  who,  as  such,  would  have  hereditary  seats  in  the 
House  of  Lords.  Thus  the  number  of  Scottish  peers  who 
are  to  elect  the  sixteen  representatives  could  not  be  increased 
and  has  steadily  dwindled:  for  to  say  nothing  of  the  extinction 
of  peerages  by  failure  of  heirs,  many  Scottish  peers  have  been 
promoted  to  peerages  of  Great  Britain,  and  when  this  happens 
the  peer  so  promoted  having  himself  a  hereditary  seat  in  the 
House  of  Lords  is  no  longer  eligible  to  serve  as  a  representa- 
tive of  the  Scottish  peerage.  Such  promotions  have  become 
so  frequent  that  the  day  seems  coming  when  there  will  be  no 
more  than  sixteen  peers  of  Scotland  and  they  will  be  able  to 
elect  themselves.  I  believe  that  there  are  now  only  about 
thirty-two  peers  of  Scotland  who  are  peers  of  Scotland  and 


no  more2. 


On  the  union  with  Ireland  a  plan  in  some  respects  similar, 
in  others  dissimilar,  was  adopted.  The  Irish  peerage  was  to 
be  represented  in  the  House  by  twenty-eight  representatives, 
elected  however  for  life.  It  was  provided  that  one  new  Irish 
peerage  might  be  created  whenever  three  Irish  peerages  had 
become  extinct  until  the  number  was  reduced  to  a  hundred, 
and  that  then  it  might  be  kept  up  at  that  figure.  Sir  William 

1  See  Pike,  Constitutional  History  of  the  House  of  Lords,  pp.  360,  368. 

a  The  number  of  such  Peers  has  now  (1913)  sunk  to  nineteen,  for  of  the 
eighty-six  Scottish  Peers,  fifty-one  have  Imperial  titles,  while  sixteen  are  elected 
to  the  Imperial  Parliament. 


350  Constitutional  History  PERIOD 

Anson1  says  that  it  was  provided  that  the  number  should 
never  fall  below  a  hundred,  but  that  seems  to  me  a  distinct 
mistake  (39  and  40  Geo.  Ill,  c.  67,  art  4, ' it  shall  and  may  be 
lawful ').  The  king  therefore  since  the  Act  of  Union  has  had, 
and  he  still  has,  a  certain  limited  power  of  creating  Irish  peers ; 
the  other  peers  that  he  creates  are  peers  of  the  United  King- 
dom with  hereditary  right  to  be  summoned  to  parliament. 

An  Irish  peer  who  is  not  a  representative  peer  is  capable 
of  being  elected  a  member  of  the  House  of  Commons  for  any 
place  in  Great  Britain,  but  not  in  Ireland;  while  he  has  a 
seat  in  the  House  of  Commons  he  is  treated  for  many  purposes 
as  a  commoner;  he  has  no  right  to  be  tried  by  the  peers;  the 
other  Irish  peers  whether  representative  peers  or  no  have 
such  a  right.  On  the  other  hand  a  Scottish  peer,  even  though 
he  is  not  a  representative  peer,  is  disqualified  from  sitting  in 
the  House  of  Commons. 

In  1876  a  new  class  of  peers  was  created,  namely  Lords 
of  Appeal  in  Ordinary.  By  the  Appellate  Jurisdiction  Act 
of  that  year  (39  and  40  Vic.  c.  59)  power  was  given  to  the 
queen  to  appoint  at  once  two  Lords  of  Appeal  in  Ordinary, 
and  on  the  happening  of  certain  events  the  number  might  be 
raised  first  to  three  and  then  to  four ;  there  are  now  four. 
The  persons  to  be  appointed  were  to  have  certain  qualifica- 
tions prescribed  by  the  act,  namely  to  have  held  certain  high 
judicial  offices  or  been  barristers  or  advocates  for  a  certain 
number  of  years  ;  they  are  paid  salaries ;  and  it  is  their  duty 
to  take  part  in  the  judicial  proceedings  of  the  House  of  Lords. 
Under  the  act  of  1876  they  hold  their  offices  during  good 
behaviour,  but  are  to  be  removable  upon  an  address  presented 
by  both  Houses  of  parliament.  Their  dignity  was  not  to  be 
inheritable  ;  but  so  long  as  they  held  office  they  were  for  all 
purposes  to  be  peers  of  the  realm  and  members  of  the  House 
of  Lords,  capable  of  sitting,  debating  and  voting  as  well  when 
the  House  was  acting  as  a  legislative  assembly  as  when  it  was 
acting  as  a  court  of  law.  Much  stress  was  laid  upon  the  fact 
that  they  were  not  to  be  life  peers,  but  official  peers ;  their 
position  was  compared  to  that  of  the  bishops.  However  a 
few  years  afterwards  one  of  the  lords  first  appointed,  Lord 

1  Law  and  Cwtoni  of  the  Constitution^  Parliament,  3rd  ed.  p.  197. 


V  Lords  of  Appeal  351 

Blackburn,  resigned  his  office.  Under  the  act  of  1876  he 
would  thereupon  have  ceased  to  be  a  peer,  but  by  an  act  of 
1887  (50  and  51  Vic.  c.  70)  it  was  decreed  that  the  Lord  of 
Appeal  in  Ordinary  might  continue  a  member  of  the  House 
of  Lords  during  the  remainder  of  his  life,  notwithstanding  a 
resignation  of  his  office.  Thus  in  fact  these  peerages  have 
become  rather  life  peerages  than  official  peerages. 

As  to  the  causes  which  may  disqualify  a  man  from  sitting 
and  voting  in  the  House  of  Lords  I  may  refer  you  to  what 
Sir  William  Anson  says  about  alienage,  bankruptcy,  infancy, 
felony,  and  a  sentence  of  the  House1.  We  ought  of  course  to 
distinguish  a  disqualification  from  sitting  and  voting  from  a 
forfeiture  of  the  peerage.  Down  to  modern  times  it  was 
possible  that  a  peerage  might  become  extinct  for  good 
and  all  owing  to  the  commission  of  a  treason  or  a  felony. 
Owing  to  successive  mitigations  of  the  law  beginning  with 
an  act  of  1814  (54  Geo.  Ill,  c.  145),  it  is  now-a-days,  I  think, 
practically  impossible  that  a  peerage  should  become  extinct 
in  this  manner ;  but  I  am  not  sure  that  it  is  absolutely  im- 
possible. Suppose  a  peer  committed  treason  or  felony  and 
was  outlawed  for  it,  the  peerage  would,  I  think,  be  forfeited  ; 
but  in  practice  the  process  of  outlawry  has  become  obsolete. 

III.     The  House  of  Commons. 

Now  as  regards  the  members  of  this  House  we  have  to  ask 
how  many  there  are,  by  whom  they  are  elected,  who  may  be 
elected,  how  they  are  elected. 

(i)  We  have  watched  the  fluctuations  of  numbers  in  the 
English  parliament  down  to  the  end  of  William  Ill's  reign: 
we  left  them  at  513.  On  the  union  with  Scotland  in  1707, 
45  Scottish  members  were  admitted  into  the  parliament  of 
Great  Britain.  On  the  union  with  Ireland  in  1801,  100  Irish 
members  were  admitted  into  the  parliament  of  the  United 
Kingdom.  Thus  the  number  became  658.  The  new  Reform 
Acts  have  macie  but  little  difference  in  the  total  number  of 
members  or  their  allotment  among  the  three  kingdoms.  There 
are  now  670,  495  for  England  (in  which  I  always  include 

1  Law  and  Custom  of  ike  Constitution^  Parliament ',  3rd  ed.  pp.  211 — 13. 


352  Constitiitional  History  PERIOD 

Wales),  72  for  Scotland  and  103  for  Ireland  ;  the  greatest 
change  is  that  the  number  given  to  Scotland  has  risen  from 
45  to  72. 

(2)  The  history  and  the  present  state  of  the  law  touching 
the  qualification  of  voters  in  counties  and  boroughs  is  a  com- 
plicated matter  if  one  attempts  to  study  it  at  all  thoroughly. 
I  strongly  recommend  to  you  Sir  William  Anson's  chapter  on 
the  subject,  which  seems  to  me  a  very  good  elementary  state- 
ment1. There  is  also  an  article  on  the  recent  act,  the  act  of 
1884,  by  Sir  William  Anson  in  the  first  number  of  the  Law 
Quarterly  Revieiv^  which,  I  think,  will  be  of  assistance  to  you 
in  unravelling  a  tangled  skein.  I  intend  to  speak  at  some 
length  of  this  matter,  and  I  shall  not  follow  Sir  William 
Anson's  treatment,  not  because  it  is  not  good — perhaps  it 
is  the  best  possible — but  because  it  would  be  idle  for  me 
to  repeat  what  is  in  a  book  which  is,  or  should  be,  in  your 
hands,  and  because  it  is  desirable  that  we  should  look  at 
every  point  of  the  law  from  several  different  points  of  view. 

The  intricacy  of  the  law  is  due  to  the  fact  that,  after  having 
remained  almost  unaltered  for  a  period  of  four  centuries,  it 
has  three  times  during  the  last  sixty  years  been  radically 
reformed.  I  refer,  of  course,  to  the  Reform  Act  of  1832 
and  the  Representation  of  the  People  Acts  of  1867  and  1884. 
The  changes  made  by  these  acts  have  been  very  great,  but 
the  law  as  a  whole  has  never  been  codified  or  restated  ;  one 
has  still  to  consider  the  law  as  it  stood  before  these  acts 
and  to  see  exactly  in  what  respects  it  has  been  modified  by 
them,  also  to  see  how  the  earlier  acts  have  been  patched  and 
tinkered  by  the  later. 

One  more  word  of  preface.  You  will  find  that  all  through 
our  history  the  qualification  of  the  voter  has  depended 
in  some  manner  or  another  on  his  relation  to  what,  loosely 
speaking,  we  may  call  real  property  (some  land  or  tenement, 
or  again,  some  dwelling-house)  situated  within  the  county  or 
borough.  Now  we  have  to  consider  what  sort  of  a  tenement 
will  do,  whether  a  dwelling-house  is  necessary,  whether  a 
warehouse  in  which  nobody  sleeps  is  sufficient,  whether  land 
without  buildings  is  enough  (again,  whether  an  incorporeal 

1  Law  and  Custom  of  the  Constitution^  Pajliamm/9  3rd  ed.  c.  v. 


V  Qualification  of  Electors  353 

hereditament  such  as  tithes  or  a  freehold  office  will  give  the 
vote),  and  also  what  must  be  the  value  of  the  tenement, 
whether  40  shillings  or  £12  or  £$o,  and  how  the  value  is  to  be 
measured,  is  it  measured  by  rental,  or  is  it  measured  by  the 
assessment  to  poor  rates?  but  (and  to  this  I  draw  attention) 
we  must  also  consider  what  is  the  requisite  relation  between 
the  voter  and  the  tenement.  Different  relations  have  been 
required  at  different  times,  by  different  statutes,  for  different 
purposes.  Sometimes  the  relation  is  proprietary,  the  voter 
must  have  an  estate  or  interest  of  a  particular  kind  in  the 
tenement :  a  freehold  estate  may  be  necessary,  or  again  a 
copyhold  estate  may  be  enough,  or  a  leasehold  interest.  And 
again,  lines  have  been  drawn  between  various  estates  of  free- 
hold. Sometimes  again,  proprietary  right  is  not  enough,  there 
must  also  be  possession :  it  will  not,  for  example,  suffice  that 
you  are  entitled  to  a  rent-charge,  it  is  required  that  you  be  in 
possession  of  it.  Or  again,  the  statute  may  insist  not  on 
proprietary  right  but  upon  occupation,  and  occupation  again 
is  an  idea  which  has  required  a  great  deal  of  definition  at 
the  hands  of  the  courts.  Does  a  servant  occupy  his  master's 
house  which  has  been  left  in  his  sole  charge  while  his  master 
lives  elsewhere?  Does  an  undergraduate,  does  a  fellow  of 
a  college  occupy  what  we  call  'his'  rooms  in  college,  or  are 
they  occupied  by  the  college,  by  the  corporation?  Again, 
the  statutes  sometimes  insist  on  something  more  than  occu- 
pation :  the  voter  must  be  an  inhabitant  occupier,  and  I  may 
occupy  a  house  that  I  do  not  inhabit.  In  reading  the  acts, 
then,  one  must  carefully  observe  how  they  describe  the  rela- 
tion between  the  man  and  the  thing,  whether  they  call  for 
proprietary  right,  or  for  possession,  or  for  the  two  together, 
or  for  occupation  or  for  residence.  Lastly,  some  of  the 
statutes  have  made  the  payment  of  rates  an  essential  part 
of  some  of  the  qualifications,  and  this  has  been  done  in  a 
perplexing  way. 

Now  the  county  and  borough  franchises  have  always  been, 
and  still  are,  distinct  things  depending  on  different  rules.  The 
last  statute,  that  of  1884,  has  introduced  much  more  uniformity 
than  there  iormerly  was.  Still,  however,  one  cannot  speak  of 
them  in  the  same  breath ;  a  qualification  which  would  serve  ' 

JM.  23 


354  Constittitional  History  PERIOD 

for  a  county  will   not  always  serve  for  a  borough,  nor  vice 
versa.     However,  in  the  historical  sketch  that  I  am  now  to 
begin  I  shall  treat  them  together,  (that  is  to  say)  the  sketch 
will  naturally  fall  into  four  periods :  (a)  before  1832,  (&)  before 
1867,  (c)  before  1884,  (d)  after  1884,  and  in  each  period  I 
shall  speak  first  of  the  county,  then  of  the  borough  fran- 
chise.    The   history   of   the    Scottish   and    Irish   franchises 
differs   in   many  details  from  that  of  the   English,  though 
on  the  whole  it  has  followed  the  same  general  course.     I 
fear  that  here  we  can  say  no  more  of  it     As  regards  the 
English   counties   we   must  go   back    to    the    act  of    1430 
(8  Hen.  VI,  c.  7) :  the  knights  of  the  shire  are  to  be  chosen 
in  every  county  by  people  dwelling  and  resident  in  the  same 
counties  whereof  every  one  of  them  shall  have  free  land  or 
tenement  to  the  value  of  40  shillings  by  the  year  at  the  least 
above   all   charges.      An  act  of   1432 — 10  Hen.  VI,  c.  2 — 
explained  that  the  freehold  was  to  be  within  the  county  for 
which  the  election  was  to  be  made.    It  may  be  doubted  whether 
the  object  of  these  measures  was  to  exclude  from  the  election 
any  large  class  of  persons  who  had  habitually  taken  part  in 
them ;   but   the   result  was   to   establish   a  qualification   by 
property,  and   one  which   at   first  was  fairly  high,  though, 
owing  to   the   change   in   the  value  of  money,  it  became 
very  low.     You  will  observe  that  the  act  of  1430  required 
of  the  voter  not  only  freehold,  but  also   residence  within 
the  county.      This  requirement  however — I  do  not  exactly 
know  how  or  when — fell  into  oblivion,  and  was  swept  away 
as  long  obsolete  by  a  statute  of  1774  (14  Geo.  Ill,  c.  58). 
At  the  same  time  a  still  older  requirement  that  the  elected 
knights  and  burgesses  should  be  resident  in  their  counties 
and  boroughs,  a  requirement  as  old  as  1413  (i  Hen.  V,  c.  i), 
was  abolished :   this  also  had  long  been  disregarded.     The 
qualification  for  county  electors  thus  came  to  be  definitely  a 
qualification  by  property,  the  having  free  land  or  tenement,  the 
having  freehold  to  the  value  of  40  shillings.    Observe  that  any 
freehold  estate  of  the  requisite  value  would  give  the  franchise, 
even  an  estate  for  life  or  pur  autre  vie.     In  1832  the  main 
objection  to  the  county  qualification  was  not  that  it  was  too 
high,  but  that  it  was  extremely  capricious ;  a  leaseholder  or 


V  The  Unreformed  Franchise          355 

copyholder,  no  matter  how  valuable  his  interest,  had  no  vote ; 
on  the  other  hand,  a  rent-charge  of  40  shillings  for  life  was 
enough ;  votes  have  been  claimed  in  respect  of  freehold  pews, 
and,  it  is  said,  in  respect  of  freehold  graves.  This,  of  course, 
made  the  manufacture  of  qualifications  an  easy  matten  Several 
statutes  of  the  last  century  attempted  to  guard  against  this 
abuse.  In  particular  an  act  of  1745  (18  Geo.  II,  c,  18,  sec.  5) 
required  that  the  voter  should  be  in  actual  possession  or  in 
receipt  of  rents  and  profits  of  his  freehold  estate  for  twelve 
months,  unless  that  estate  came  to  him  by  descent,  marriage, 
marriage  settlement,  devise  or  promotion  to  a  benefice  or 
office.  The  idea  was  this :  that  if  you  acquire  title  by  such 
means  as  these,  it  is  needless  to  insist  on  possession ;  if,  on 
the  other  hand,  you  acquire  it  by  sale  or  by  gift  inter  vivos, 
there  is  danger  of  an  attempt  to  manufacture  votes,  and  so 
a  certain  length  of  possession  is  required  in  order  to  prove 
the  good  faith  of  the  transaction. 

You  should  further  understand  that  until  1832  no  list  of 
voters  was  prepared  beforehand.  Since  the  Reform  Act  the 
qualifications  by  property,  occupation  and  so  forth  are  not 
strictly  speaking  qualifications  entitling  one  to  vote — they 
are  qualifications  entitling  one  to  be  placed  on  the  register 
of  electors,  and  the  only  qualification  that  (in  strictness)  en- 
titles one  to  vote  is  the  fact  that  one  is  a  registered  elector. 
Until  1832  the  would-be  voter  appeared  at  the  poll,  tendered 
his  vote,  and  then  and  there  swore  an  oath  prescribed  by 
statute  to  the  effect  that  he  had  the  requisite  qualification — 
that  he  had  freehold,  was  in  possession  and  so  forth.  The 
procedure  now  is  quite  different — no  one  can  vote  who  is  not 
on  the  register  of  voters,  and  on  the  other  hand  the  register 
is  for  many  purposes,  though  not  for  all  purposes,  con- 
clusive that  the  persons  whose  names  are  there  are  entitled 
to  vote. 

As  to  the  boroughs,  before  the  act  of  1832  the  requisite 
qualification  varied  from  borough  to  borough — there  was  no 
general  law,  statutes  had  hardly  meddled  with  the  matter, 
each  borough  had  its  own  history,  and  the  matter  was  settled 
for  it  either  by  the  terms  of  its  charter,  or  by  ancient  usage. 
Sir  William  Anson  has  a  few  pages  on  this  subject  which 

23 2 


356  Constitutional  History  PERIOD 

seem  to  me  so  extremely  good  that  if  I  went  over  the  same 
ground  I  could  only  paraphrase  them1.  The  qualifications 
though  they  were  very  various  fell  into  several  great  classes. 
First  there  was  tenure.  A  few  towns  which  by  charter  had 
been  made  counties  of  themselves  had  adopted  the  county 
qualification.  There  are,  I  believe,  now  seventeen  towns 
(besides  London)  which  are  counties  of  themselves,  or  counties 
corporate2.  In  some  of  these  the  county  qualification  was  ad- 
opted— namely,  forty-shilling  freehold.  In  some  other  towns 
burgage  tenure  gave  the  franchise.  Burgage  was  a  variety 
of  socage  found  in  some  ancient  boroughs,  important  in  the 
Middle  Ages,  for  the  burgage  tenement  was  generally  devisable 
by  custom  long  before  freeholds  in  general  were  made  devisable 
by  statute.  Residence,  qualified  in  this  way  or  in  that,  con- 
stituted a  second  head.  I  believe  that  if  there  was  no  charter 
and  no  usage  to  the  contrary,  the  right  was  considered  to  be 
vested  in  'the  inhabitant  householders/ and  so  if  any  qualifica- 
tion can  be  spoken  of  as  the  common  law  qualification,  it  is 
this.  Very  often  indeed  the  right  might  be  exercised  by  those 
who  paid  scot  and  lot,  or  to  be  more  exact,  who  paid  scot  and 
bore  lot.  This  phrase  refers  to  a  participation  in  the  ancient 
local  burdens — 'scot'  refers  to  the  money  payments;  'lot'  to 
work  done  in  person — men  were  compellable,  for  instance,  to 
fill  municipal  offices :  to  be  mayors,  aldermen,  constables,  and 
so  forth — those  liable  to  burdens  of  this  sort  bore  lot.  In 
modern  times  liability  to  poor  rate  was  taken  as  the  general 
test — the  person  who  was  rated  was  deemed  to  pay  scot  and 
lot.  Sometimes  the  right  was  vested  in  those  who  by  a  queer 
mistake  came  to  be  called  pot  wallers,  or  even  potwallopers ; 
the  mistake  arose  from  reading  an  old  fashioned  W  as  a  B  — 
the  word  is  really  potboilers.  Here  the  constitution  was 
democratic  indeed  :  even  householding  was  unnecessary ;  the 
sole  dominion  of  a  single  room  having  a  fire-place  in  it  was 

1  Law  and  Custom  of  the  Constitution^  Parliament^  3rd  cd.  pp.  10.5  --5. 

3  The  Local  Government  Act  of  1888  (51  and  52  Viet.  c.  41)  created  forty-four 
county  boroughs  in  addition  to  the  seventeen  already  existing  and  provided  that 
any  town  might  be  constituted  a  county  borough  by  order  of  the  Local  Govern- 
ment Board  on  attaining  a  population  of  50,000.  At  the  census  of  1901  there 
were  sixty-seven  county  boroughs. 


V  The  First  Reform  Act  357 

enough.  In  a  third  great  class  of  boroughs  the  persons  en- 
titled to  vote  were  the  freemen,  that  is,  the  members  of  the 
municipal  corporation  which  had  been  created  by  charter ; 
freedom  of  the  borough,  membership  of  the  corporation,  was 
acquired  in  many  ways ;  some  were  born  free,  others  obtained 
freedom  by  marriage,  or  by  really  or  nominally  serving  as 
apprentices  of  some  freeman  in  his  craft  or  trade;  the  freedom 
of  the  borough  might  in  some  places  be  given  or  sold.  In 
London,  membership  of  one  of  the  trading  companies,  the 
livery  companies,  became  necessary.  Lastly  there  were  what 
were  often  known  as  the  close  boroughs ;  in  these  the  right 
to  vote  was  restricted  by  royal  charter  to  the  governing  body 
of  the  borough — often  a  small  knot  of  aldermen  who  elected 
their  own  successors.  Such  charters  were  the  outcome  of  the 
efforts  on  the  part  of  Tudors  and  Stuarts  to  obtain  more  man- 
ageable parliaments — not  too  successful,  for  these  boroughs 
often  fell  under  the  influence  of  the  great  landowners  and 
became  pocket  boroughs. 

Such,  put  briefly,  was  the  state  of  things  before  the  first 
Reform  Act.  Now  as  to  the  English  counties,  that  act  altered 
the  old  and  introduced  several  new  qualifications.  The  old  quali- 
fication was  the  forty-shilling  freehold.  As  to  this,  it  required 
that  the  person  claiming  to  be  registered  should  either  (i)  be 
in  actual  occupation  of  the  tenement  in  respect  of  which  he 
based  his  claim,  or  (2)  have  an  estate  of  inheritance  in  it,  or 
(3)  should  have  acquired  his  estate  by  marriage,  marriage  settle- 
ment, devise  or  promotion,  or  (4)  should  have  an  estate  worth 
£10  a  year.  To  put  the  matter  another  way,  it  deprived  of  the 
franchise  freeholders  whose  freeholds  were  worth  40  shillings 
but  less  than  £10,  if  their  freeholds  were  (a)  not  estates  of 
inheritance,  (b)  not  acquired  by  marriage,  marriage  settlement, 
etc.,  and  (c)  not  in  their  own  actual  occupation.  But  of  course 
the  more  important  change  was  that  the  act  invented  several 
quite  new  qualifications.  It  entitled  to  the  vote  (i)  any  person 
seised  at  law  or  in  equity  of  any  land  or  tenement  of  copy- 
hold tenure,  or  any  tenure  other  than  freehold  for  life  or  for 
any  greater  estate  of  the  clear  yearly  value  of  ^10  or  upwards; 
(2)  any  person  entitled  as  lessee  or  assignee  to  any  lands  or 
tenements  for  a  term  of  years  originally  created  for  a  period 


358  Constitutional  History  PERIOD 

of  60  years  or  more  of  the  clear  yearly  value  of  £10;  (3)  any 
person  entitled  as  lessee  or  assignee  to  any  lands  or  tenements 
for  a  term  of  years  originally  created  for  a  period  of  not  less 
than  20  years  of  the  clear  yearly  value  of  £50 ;  (4)  every 
person  who  occupies  as  tenant  any  lands  or  tenements  for 
which  he  shall  be  liable  to  a  rent  of  not  less  than  £50. 

Thenceforwards  then  the  classes  of  voters  were  (a)  the 
forty-shilling  freeholders,  but  as  we  have  already  seen  the 
forty-shilling  freehold  would  not  in  all  circumstances  give 
the  vote:  £10  was  required  in  certain  circumstances  of  those 
whose  estates  were  but  for  life ;  (ft)  the  £10  copyholders ; 
(7)  the  £10  long  leaseholders  ;  (8)  the  £50  short  leaseholders; 
(e)  the  £$o  occupiers.  An  occupation  franchise  was  a  quite 
new  thing  in  the  counties ;  the  person  occupying  a  tenement 
at  a  rent  of  £$o  was  to  have  the  vote  no  matter  what  the 
character  of  his  tenancy.  Observe  also  that  in  this  case  the 
amount  of  rent  payable  was  made  the  important  thing — he 
was  to  be  liable  for  a  yearly  rent  of  not  less  than  ^50. 

As  to  the  boroughs  the  act  greatly  simplified  the  compli- 
cated state  of  affairs  which  was  then  in  existence.  It  introduced 
one  uniform  qualification  into  boroughs :  the  claimant  must 
occupy  as  owner  or  tenant  any  house,  warehouse,  counting- 
house,  shop,  or  other  building  of  the  clear  yearly  value  of 
£10,  he  must  occupy  for  twelve  months  next  before  the  fixed 
day,  he  must  (if  a  poor  rate  has  been  made)  have  been  rated 
and  have  paid  his  rates,  and  he  must  have  resided  for  the  last 
six  months  within  the  borough  or  within  seven  miles  of  it ; 
note  the  difference  between  residence  and  occupation.  From 
1832  to  1867  this  was  the  uniform  qualification  in  all  boroughs, 
generaflylspftlfen  of  as  the  £10  occupation  franchise.  As  to 
the  old  qualifications,  which  I  may  remind  you  varied  from 
borough  to  borough,  the  act  in  a  general  way  saved  the 
existing  rights  of  persons  who  were  entitled  to  vote  but  im- 
posed upon  them  certain  restrictions.  This  saving  we  need 
not  consider  for  its  force  must  now  be  spent  But,  and  this 
is  more  important,  it  saved  permanently  certain  qualifications 
as  regards  boroughs  in  which  those  qualifications  already  ex- 
isted. These,  1  may  say  once  for  all,  are  still  saved,  though 
owing  to  more  recent  extensions  of  the  franchise  they  are  no 


V  Municipal  Reform  359 

longer  of  much  moment.  The  qualifications  saved  were  these : 
(l)  the  qualification  of  freeholding  or \>urgage  holding  in  those 
towns  being  counties  of  themselves  in  which  such  qualification 
already  existed ;  (2)  the  qualification  by  being  a  freeman,  or 
by  being  a  burgess,  or  by  being  a  freeman  or  liveryman  in 
those  boroughs  in  which  these  qualifications  already  existed. 
But  the  qualification  by  being  a  freeman  of  the  borough,  or 
a  burgess  of  the  borough,  that  is  by  being  a  member  of  the 
municipal  corporation  according  to  its  then  constitution,  was 
put  under  restrictions ;  residence  in  or  within  seven  miles  of 
the  borough  was  required,  and  for  the  future  freedom  of  the 
borough  was  not  to  confer  a  title  to  a  vote  unless  acquired 
either  by  birth  or  by  servitude.  In  some  boroughs  therefore 
one  still  meets  with  persons  who  are  entitled  to  be  registered 
as  freemen. 

For  the  boroughs  then  the  Reform  Act  introduced  one 
uniform  qualification  ;  some  other  qualifications  it  preserved 
where  it  found  them,  but  only  where  it  found  them,  ancfr  that 
in  a  very  modified  form.  - 

Parenthetically  we  may  notice  that  the  Parliamentary 
Reform  of  1832  was  followed  almost  immediately  by  the 
Municipal  Reform  of  1835.  Practically  and  with  the  excep- 
tion of  London  the  municipal  constitution  of  all  the  boroughs 
was  remodelled  on  one  uniform  plan.  Every  person  who 
occupies  a  house,  warehouse,  shop,  or  other  building  in  the 
borough  for  which  he  pays  poor  rates,  and  who  resides  within 
seven  miles  of  the  borough,  is  entitled  to  be  enrolled  as  a  bur- 
gess, a  member  of  the  corporation;  the  municipal  corporation 
consists  of  the  burgesses  thus  enrolled.  Before  the  act  the 
members  of  the  corporation,  the  freemen  as  they  were  called, 
were  often  very  few.  In  Plymouth,  where  the  population 
was  75,000,  the  number  of  freemen  was  437  and  145  of  them 
were  non-resident.  In  Ipswich  less  than  two  per  cent,  of  the 
inhabitants  enjoyed  corporate  privileges,  and  of  that  two  per 
cent,  a  large  number  were  paupers.  I  have  said  that  the 
qualification  by  freemanship  has  been  to  some  extent  re- 
tained;  but  you  should  understand  that  the  man  who  is. 
burgess  of  a  borough  under  the  Municipal  Corporations  Acts 
has  not  as  such  any  right  to  a  vote.  It  is  probable  now-a- 


360  Constitutional  History  PERIOD 

days,  owing  to  more  recent  extensions  of  the  parliamentary 
franchise,  that  the  burgess  will  have  a  vote  for  the  borough 
if  indeed  the  borough  return^  a  member.  But  this  is  not 
necessarily  the  case.  A  municipal  borough  is  not  as  such 
entitled  to  be  represented,  many  municipal  boroughs  have 
now  no  members  of  their  own  ;  again,  the  geographical  limits 
of  what  is  called  the  parliamentary  borough  may  well  be 
different  from  those  of  the  municipal  borough,  and  again, 
though  these  limits  coincide,  yet  a  burgess  may  have  no  vote 
in  a  parliamentary  election,  while  one  who  is  no  burgess  may 
have  a  vote ;  the  lodger  for  instance  has  now  a  vote,  but  is 
not  entitled  to  be  enrolled  as  a  burgess.  The  two  things 
must  be  kept  distinct.  The  main  right  of  the  burgess  as 
such  is  that  of  voting  in  the  election  of  town  councillors  who 
manage  the  affairs  of  the  borough., 

We  come  to  the  act  of  1867.  As  to  the  counties  this 
did  in  the  main  two  things,  (i)  You  will  remember  that  in 
sevefal  cases  the  act  of  1832  required  that  the  qualifying 
tenement  should  be  of  the  yearly  value  of  ;£io;  this  was  the 
case  as  to  estates  for  life  except  in  certain  circumstances,  as 
to  copyhold  estates,  and  as  to  long  leaseholds,  that  is,  terms 
originally  created  for  60  years  or  more.  In  all  these  cases  the 
new  act  substituted  £$  for  £10,  thus  lowering  the  property 
qualifications.  (2)  In  the  second  place,  it  lowered  the  occu- 
pation qualification,  or  speaking  more  strictly  it  introduced 
a  new  occupation  qualification  ;  the  person  entitled  must  have 
been  for  the  last  twelve  months  the  occupier  as  owner  or 
tenant. of  a  tenement  of  the  rateable  value  of  £12,  must  have 
been  rated  to  the  poor  rate — if  any  has  been  made — and 
must  have  paid  his  rates.  The  then  existing  qualification  by 
occupation  consisted,  you  will  remember,  in  the  occupation  of 
a  tenement  at  a  rent  of  £50 ;  this  was  not  swept  away ;  the 
new  qualification  was  placed  by  its  side,  and  it  is  quite 
possible,  at  least  in  theory,  that  a  man  should  be  paying 
a  rent  of  £50  for  a  tenement  rated  at  less  than  £12.  In  the 
counties  then  the  act  of  1867  lowered  some  of  the  qualifica- 
tions by  property,  and  it  introduced  a  new  qualification  by 
occupation — occupation  of  a  tenement  worth  £12  rateable 
value. 


v  The  Second  Reform  Act  361 

In  the  boroughs  the  changes  were  yet  larger.  Two  quite 
new  qualifications  were  introduced  beside  the  occupation  quali- 
fication of  1832 — what  are  generally  known  as  the  household 
and  the  lodger  franchises  were  created.  The  former  can  be 
claimed  by  a  man  who  has  been  for  a  year  an  inhabitant 
occupier  as  owner  or  tenant  of  any  divelling-house  within  the 
borough,  has  been  rated  to  any  poor  rate  made  during  that 
period  and  has  paid  his  rates.  The  latter  can  be  claimed  by 
any  man  who  for  a  year  has  occupied  as  lodger  the  same 
lodgings  of  the  clear  yearly  value  of  ;£io,  if  let  unfurnished, 
and  who  has  resided  during  the  whole  qualifying  year.  The 
qualification  in  these  cases  you  observe  consists  not  in  mere 
occupation  but  in  inhabitance  or  residence ;  one  must  be  the 
inhabitant  occupier  of  the  dwelling-house;  one  must  reside 
in  the  lodgings,  and  while  the  lodgings  must  be  worth  £10 
a  year  any  dwelling-house  will  do.  So  large  a  definition  of 
a  dwelling-house  has  now  been  given  by  statute,  one  so  much 
larger  than  the  ordinary  meaning  of  the  word,  that  it  is  some- 
times very  difficult  to  mark  off  the  inhabitant  occupier  of  a 
dwelling-house  from  the  lodger  who  resides  in  lodgings. 

The  act  of  1884,  to  which  we  now  come,  is  a  very  clumsy 
document.  What  it  does  however,  broadly  stated,  is  this: — 
it  extends  to  the  coimiies  the  £±Q  occupation  franchise,  the 
household  qualification,  and  the  lodger  qualification  which 
had  been  introduced  into  the  borough  in  1867.  The  house- 
hold qualification,  you  will  remember,  is  that  of  the  inhabitant 
occupier  of  a  dwelling-house  of  any  value,  however  small. 
The  lodger  qualification  is  that  of  a  lodger  who  occupies  and 
resides  in  lodgings  of  the  value  of  £10.  But  both  for  counties 
and  for  boroughs  the  household  qualification  is  extended  or, 
if  you  please,  a  new  qualification  is  created  by  a  provision  as 
to  servants.  If  a  man  (A)  himself  inhabits  any  dwelling- 
house  by  virtue  of  any  office,  service  or  employment,  and 
the  dwelling-house  is  not  inhabited  by  any  person  (B)  under 
whom  such  man  (A)  serves  in  such  office,  service  or  employ- 
ment, he  (A)  shall  be  deemed  to  be  an  inhabitant  occupier  of 
such  dwelling-house  as  tenant.  You  see  for  what  sort  of  case 
this  section  provides:  my  gardener  who  as  such  lives  in  a 
cottage  of  mine,  paying  no  rent  but  getting  less  wages  in 


362  Constitutional  History  PERIOD 

consequence,  is  to  have  a  vote :  but  for  this  section  he  would 
have  had  none;  my  butler  who  lives  in  the  house  that  I 
inhabit  will  still  have  no  vote.  Then  again  the  occupation 
qualification  in  the  counties  and  boroughs  was  remodelled. 
The  same  qualification  is  to  serve  for  both,  namely  occupying 
any  land  or  tenement  of  a  clear  yearly  value  of  ;£io.  This 
lowered  the  qualification  in  counties  where  the  requisite  value 
had  been  £12  rateable  value.  It  extended  the  qualification 
in  boroughs  where  up  to  that  time  the  tenement  which  would 
give  this  qualification  was  not  any  land  or  tenement,  but 
any  house,  warehouse  or  other  building.  It  thus  made  the 
occupation  qualification  much  the  same  in  counties  and  in 
boroughs;  not  however  quite  the  same — a  condition  of  re- 
siding in  or  within  seven  miles  of  the  borough  is  imposed  on 
the  borough  voter,  from  which  the  county  voter  is  free. 

Broadly  speaking  then  the  result  is  this — there  are  three 
qualifications  which  prevail  throughout  all  England,  whether 
the  place  be  in  what  for  this  purpose  is  called  a  county,  or  in 
what  for  this  purpose  is  called  a  borough;  these  are  (i)  the 
qualification  of  the  inhabitant  occupier  of  a  dwelling-house, 
(2)  that  of  the  occupier  as  lodger  of  lodgings  of  the  value  of 
£10,  (3)  that  of  the  occupier  of  any  land  or  tenement  of  the 
value  of  £10.  Besides  these  we  have  in  the  counties  the 
property  qualifications — including  the  old  forty-shilling  free- 
hold qualification,  which  has  been  subjected  to  certain 
restrictions,  the  ,£5  copyhold  qualification,  and  the  £$o  and  ,£5 
leaseholder  qualifications. 

It  remains  to  be  noticed  that  the  Reform  Acts,  especially 
the  last,  have  effected  a  very  great  change  in  the  whole  scheme 
of  representation.  Nominally  we  can  still  divide  members 
into  borough  members  and  county  members — and  the  distinc- 
tion is  still  of  some  importance,  because,  as  we  have  just  seen, 
certain  qualifications  still  exist  in  what  are  called  counties, 
which  will  not  serve  for  what  are  called  boroughs.  But  in 
truth  any  talk  about  counties  and  boroughs  is  apt  now-a-days 
to  be  misleading. 

In  the  first  place,  since  1832  parliamentary  organization 
has  been  quite  separate  from  municipal  organization.  The 
so-called  borough  member  now  often  sits  for  a  district  which 


V  The  Third  Reform  Act  363 

has  no  municipal  organization.  This  since  1884  is  very 
frequently  the  case.  The  larger  towns  have  been  cut  up  into 
districts,  each  of  which  returns  a  member  to  parliament  for 
itself.  Thus  take  Liverpool :  no  member  sits  for  the  munici- 
pally organized  borough  of  Liverpool,  a  member  sits  for  the 
Abercromby  division  of  Liverpool,  another  for  the  Everton 
division,  another  for  the  Exchange  division,  and  so  forth ;  so 
East  Manchester  has  its  member,  and  North-East  Manchester, 
and  so  forth.  The  counties  again  have  been  cut  up  into 
districts.  Cambridgeshire  as  a  whole  has  no  members,  but  the 
Chesterton  Division  of  Cambridgeshire  has  its  member,  and 
the  Newmarket  Division,  and  the  Wisbech  Division.  Again, 
often  it  happens  that  the  area  which  returns  members  is 
larger  or  smaller  than  the  area  which  has  a  municipal  con- 
stitution. In  short  the  tendency  of  the  act  of  1884  was  to 
split  up  England  into  electoral  districts,  some  known  as 
divisions  of  counties,  some  known  as  boroughs  or  divisions 
of  boroughs,  which  shall,  roughly  speaking,  have  equal  popu- 
lations. This  principle  was  not  rigorously  carried  out,  some 
respect  was  had  to  already  existing  arrangements,  but  still 
a  large  step  was  made  towards  a  parcelling  out  of  England 
into  equal  electoral  districts. 

The  ancient  idea  of  the  representation  of  communities,  of 
organized  bodies  of  men,  bodies  which,  whether  called  boroughs 
or  counties,  constantly  act  as  wholes,  and  have  common  rights 
and  duties,  has  thus  given  way  to  that  of  a  representation  of 
numbers,  of  unorganized  masses  of  men,  or  of  men  who  are 
organized  just  for  the  one  purpose  of  choosing  members. 

A  list  of  the  electoral  qualifications  should  be  followed  by 
a  list  of  the  causes  of  disqualification.  The  disqualified  classes 
are  women,  infants,  peers  (not  being  Irish  peers  with  seats  in 
the  House  of  Commons),  returning  officers  and  persons  con- 
cerned in  the  election  as  agents,  clerks,  messengers  or  the  like, 
aliens,  persons  of  unsound  mind,  persons  convicted  of  treason 
or  felony  until  they  have  served  their  terms  of  punishment  or 
been  pardoned,  and  persons  convicted  of  certain  electoral 
malpractices,  persons  in  receipt  of  parochial  relief  or  other 
alms ;  the  exact  extent  of  this  disqualification  by  receipt  of 
alms  is  not  very  well 


364  Constitutional  History  PERIOD 

Until  lately  a  good  many  persons  were  disqualified  by 
statute  in  consequence  of  their  employment  in  governmental 
posts,  in  particular  revenue  officers  and  policemen,  but  the 
disqualification  of  revenue  officers  was  removed  in  1868,  and 
that  of  policemen  in  1887,  and  I  think  that  there  can  now  be 
hardly  anyone  disqualified  by  reason  of  his  employment, 
except  returning  officers  and  the  agents  and  canvassers,  etc., 
of  the  candidates.  The  clergy  seem  to  have  voted  at  least 
ever  since  the  time  when  they  ceased  to  be  taxed  by  their 
convocations. 

(3)  As  to  the  qualification  of  members  returned.  I  will 
take  them  almost  in  Sir  William  Anson's  order,  with  the  view 
of  making  a  few  additional  remarks.  I  pass  by  (i)  infancy, 
(2)  insanity,  (3)  want  of  British  nationality,  (4)  peerage, 
(5)  clergy ;  the  clergy  of  the  established  churches  of  England 
and  Scotland  are  excluded,  so  also  the  clergy  of  the  Romish 
church  :  ministers  of  other  religious  bodies  are  not  excluded. 
Women  are  excluded — Sir  William  Anson  appears  to  have 
forgotten  this,  but  there  can  be  no  doubt  that  this  is  common 
law.  The  fact  that  peeresses  have  never  sat  in  the  House  of 
Lords  seems  by  itself  conclusive.  I  do  not  think  that  a 
woman  has  ever  been  elected  to  the  House  of  Commons. 
Bankrupts  are  disqualified  by  statute.  Persons  convicted  of 
treason  or  felony  and  sentenced  to  death,  penal  servitude,  or 
imprisonment  with  hard  labour,  or  imprisonment  for  more  than 
a  year,  are  incapable  of  sitting  until  they  shall  have  suffered 
the  punishment  or  been  pardoned.  This  by  statute  of  1870, 
but  it  seems  that  common  law  would  exclude  convicted 
traitors  and  felons.  It  remains  to  speak  of  religion,  office  and 
property. 

The  history  of  parliamentary  oaths  and  religious  disabilities 
is  very  intricate,  and  I  am  not  at  all  certain  that  I  have  got  it 
straight.  But  it  begins  in  1562  with  the  statute  5  Eliz.,  c.  I, 
13,  which  required  every  member  of  the  House  of  Commons 
to  take  the  oath  of  supremacy — to  swear  that  the  queen  is  only 
supreme  governor  of  this  realm  as  well  in  spiritual  as  in 
temporal  causes,  and  that  no  foreign  person  or  potentate  has 
any  authority  ecclesiastical  or  spiritual  within  this  realm.  In 
1609  an  oath  °f  allegiance  was  added  (7  Jac.  I,  c.  6),  to  the 


V  Religious  Disabilities  365 

effect  that  the  king  is  lawfully  king,  and  that  the  pope  has  no 
power  to  depose  him.  In  1678  (30  Car.  II,  stat.  2,  c.  i)  to 
these  oaths  was  added  a  declaration  against  transubstantiation, 
the  invocation  of  saints  and  the  sacrifice  of  the  mass :  and 
the  two  oaths  and  this  declaration  were  required  of  lords  as 
well  as  commons.  The  doors  of  both  Houses  were  thus 
effectually  closed  to  members  of  the  Roman  church  ;  some  of 
them  might  be  ready  to  take  the  two  oaths  which  related  to 
church  government,  but  the  declaration  as  to  doctrine  was 
utterly  incompatible  with  their  most  fundamental  beliefs. 
Immediately  after  the  Revolution  the  two  oaths  of  allegiance 
and  supremacy  were  altered  in  form,  the  first  was  to  be 
merely  this,  '  I  will  be  faithful  and  bear  true  allegiance  to 
King  William  and  Queen  Mary';  the  second  was  'I  do  abhor 
as  impious  and  heretical  the  damnable  doctrine  and  position 
that  princes  excommunicated  by  the  Pope  or  any  authority 
of  the  see  of  Rome  may  be  deposed  or  murdered  by  their 
subjects  or  any  whatsoever,  and  I  declare  that  no  foreign 
prince  or  person  hath  or  ought  to  have  any  jurisdiction  or 
authority  ecclesiastical  or  spiritual  within  this  realm.'  The 
declaration  against  transubstantiation  was  still  maintained. 
An  act  of  1701  added  a  third  oath,  known  as  the  oath  of 
'abjuration/  it  is  long  and  of  a  more  political  character:  the 
swearer  abjures  all  allegiance  to  the  pretended  Prince  of 
Wales,  and  promises  to  maintain  the  royal  succession  as  fixed 
by  the  Bill  of  Rights  and  the  Act  of  Settlement,  and  this 
he  does  upon  the  true  faith  of  a  Christian. 

The  persons  who  were  thus  excluded  were  members  of  the 
Roman  Church,  persons  who  objected  to  oaths,  and  persons 
who  were  not  Christians:  Quakers  we  may  say,  and  Jews.  In 
1696  (7  and  8  Will.  Ill,  c.  27)  the  oaths  of  allegiance  and 
supremacy  were  required  of  the  electors  as  well  as  of  the 
elected  ;  and  the  electors  had  also  to  take  the  oath  of  abjura- 
tion. In  1696  Quakers  were  permitted  to  make  an  affirmation 
instead  of  taking  an  oath.  On  the  accession  of  George  I,  the 
oaths  were  slightly  altered.  Catholics  then  could  not  sit  in 
either  House  until  1829,  and  properly  speaking  they  could  not 
vote  in  parliamentary  elections,  but  the  business  of  tendering 
oaths  to  the  voters  had  made  elections  so  very  long,  that  it 


366  Constitutional  History  PERIOD 

was  not  gone  through  unless  the  candidates  required  it,  and 
statute  (1794,  34  Geo.  Ill,  c.  73)  permitted  this  omission,  so 
I  daresay  that  Catholics  did  vote.     The  Catholic  Relief  Act 
of  1829  (10  Geo.  IV,  c.  7)  substituted  another  oath  which 
Catholics  could  take — they  had  to  swear  allegiance,  and  also 
that  the  pope  had  no  civil  jurisdiction  or  authority  within  this 
realm,  and  that  they  would  not  subvert  the  church  establish- 
ment  or   exercise  any  privilege   to   weaken  the   Protestant 
religion  in  this  kingdom.     The  Catholics  who  would  take  this 
oath  were  thus  enabled  to  sit  in  either  House,  and  vote  at 
parliamentary  elections:  Catholics  in  holy  orders  were,  however, 
expressly   excluded    from    the    Commons*    House.      In   the 
previous  year,  1828,  a  great  measure  of  relief  had  been  given 
to  all  non-conformists,  by  what  is  generally  called  the  repeal 
of  the  Test  and  Corporation  Acts  (the  Test  Act  was  not 
wholly  repealed),  but  this  does  not  concern  us,  the  Protestant 
dissenter  had  not  been  excluded  from  parliament  nor  from 
voting  in  parliamentary  elections,  but  he  had  been  excluded 
from  many  offices  by  a  requirement  that  he  should  take  the 
sacrament.      This   requirement,  ever  since    1727,  had   been 
evaded  by  the  passing  of  annual   bills  indemnifying  those 
office-holders  who  had  failed  to  take  the  sacrament     In  1828 
a  declaration   was   substituted   for  the   sacramental   test,   a 
declaration  to  the  effect  that  the  declarant  would  not  use  his 
privileges    to    the    injury   of  the  established   church.     The 
necessity  of  making  such  declaration  was  removed  in  1868 
(31  and  32  Vic.,  c.  72).     But  to  return  to  parliamentary  tests. 
All  oaths  to  be  exacted  from  an  elector  disappeared  in 
1832  under  the  Reform  Act,  except  an  oath  as  to  his  identity — 
that  he  was  the  person  named  on  the  register.     In  1858  (21 
and  22  Vic.,  c.  48)  the  old  oaths  of  allegiance,  supremacy  and 
abjuration  were  swept  away,  and  a  new  form  devised,  to  the 
effect  that  the  swearer  will  bear  true  allegiance  to  the  queen, 
and  maintain  the  succession  fixed  by  the  Act  of  Settlement, 
and  that  he  declares  that  no  foreign  power,  prelate  or  potentate 
has  any  jurisdiction  or  authority,  ecclesiastical  or  spiritual, 
within  the  realm.    The  special  oath  for  Roman  Catholics,  as 
settled  in  1829,  was  still  maintained.    Another  act  of  the  same 
year,  1858  (21  and  22  Vic.,  c.  49),  enabled  either  House  to 


V  Removal  of  Disabilities  367 

dispense,  in  the  case  of  a  Jew  presenting  himself  as  a  member 
of  that  House,  with  the  words  '  in  the  true  faith  of  a  Christian/ 
This  was  a  compromise :  for  some  years  past  the  House  of 
Commons  had  been  sending  up  bills  for  the  relief  of  Jews  to 
the  House  of  Lords,  which  rejected  them.  The  commons 
admitted  Jews;  the  lords  could  exclude  them.  In  1866  the 
parliamentary  oath  was  simplified  (29  Vic.,  c.  19),  it  became 
an  oath  to  be  faithful  to  the  queen,  and  to  maintain  the  royal 
succession  as  fixed  by  the  Act  of  Settlement ;  there  were  no 
words  about  the  pope,  and  'the  true  faith  of  a  Christian' 
disappeared;  Catholics  and  Jews  could  take  the  oath  required 
of  other  members.  In  1868  the  oath  was  once  more  simplified, 
it  was  cut  down  to  this,  '  I  will  be  faithful  and  bear  true 
allegiance  to  Queen  Victoria,  her  heirs  and  successors,  accord- 
ing to  law,  so  help  me  God/  What  is  more,  failure  to  take 
the  oath  docs  not  vacate  the  seat,  it  subjects  the  member  to 
a  penalty  of  ^"500  every  time  he  votes.  The  results,  as  worked 
out  in  Bradlaugh's  cases,  are  lucidly  explained  by  Anson1.  In 
1888  (51  and  52  Vic.,  c.  46)  an  act  was  passed  which  enabled 
any  person  to  substitute  for  an  oath  a  solemn  affirmation,  if  he 
objects  to  being  sworn,  and  states  as  the  ground  of  such 
objection,  either  that  he  has  no  religious  belief,  or  that  the 
taking  of  an  oath  is  contrary  to  his  religious  belief. 

And  now  as  regards  office,  the  only  common  law  disquali- 
fications seem  to  have  been  those  of  the  sheriffs  (who  might 
not  sit  for  their  own  shires)  and  the  judges  of  the  three  common 
law  courts,  and  these  have  been  swallowed  up  in  statutory 
disqualifications  which  comprise  all  returning  officers,  and 
almost  all  persons  who  can  be  comprised  in  the  term  judges : 
this  includes  the  judges  of  the  High  Court  of  Justice  and  the 
Court  of  Appeal,  the  County  Court  judges,  and  the  police 
magistrates.  A  recorder  may  not  sit  for  the  town  of  which 
he  is  recorder  ;  a  revising  barrister  may  not  sit  for  any  place 
comprised  within  his  district.  On  the  other  hand,  the  unpaid 
magistrates,  the  justices  of  the  peace,  are  not  excluded. 
Judges  are  not  excluded  from  the  House  of  Lords — very 
frequently  the  Lord  Chief  Justice  is  made  a  peer. 

1  Law  and  Custom  of  the.  Constitution,  Parliament ',  3rd  ed,  pp»  87—9. 


368  Constitutional  History  PERIOD 

As  regards  other  offices  legislation  has  been  very  compli- 
cated. As  showing  the  view  taken  by  parliament  at  the 
Beginning  of  the  last  century,  we  may  start  with  the  broad 
principle  laid  down  in  the  Act  of  Settlement,  that  no  person 
who  has  an  office  or  place  of  profit  under  the  crown  shall  be 
capable  of  serving  as  a  member  of  the  House  of  Commons. 
This  rule  was  to  come  into  force  so  soon  as  the  Hanoverian 
House  should  come  to  the  throne.  But  before  it  could  take 
effect  it  was  repealed  in  1705  by  a  Statute  (4  Anne,  c.  8) 
which  in  substance  laid  down  the  rule  which  was  repeated 
in  1707  by  6  Anne,  c.  41,  an  act  still  in  force,  and  the 
foundation  of  all  subsequent  legislation.  What  it  says  is  in 
short  this,  that  no  person  having  any  office  or  place  of  profit 
under  the  crown,  created  since  25  Oct.  1705,  shall  be  capable 
of  being  elected  or  sitting  in  the  House  of  Commons;  secondly, 
if  any  member  shall  accept  any  office  of  profit  from  the  crown, 
his  election  shall  be  void,  and  a  new  writ  shall  issue  as  though 
he  were  dead,  provided,  nevertheless,  that  he  shall  be  capable 
of  reelection.  This  then  divided  offices  into  new  offices  and 
old  offices,  the  holding  of  a  new  office  was  to  be  utterly 
incompatible  with  a  seat  in  the  House;  not  so  an  old  office: 
a  person  accepting  such  an  office  is  to  vacate  his  seat,  but  be 
capable  of  reelection.  Offices  are  '  new*  or  'old/  according  as 
they  were  or  were  not  created  since  the  25th  Oct.  1705. 

I  need  hardly  pause  to  point  out  how  different  would  have 
been  the  history  of  parliament,  had  the  clause  in  the  Act  of 
Settlement  become  a  permanent  part  of  the  law  of  the  land. 
Our  modern  ministerial  system  would  have  been  impossible, 
and  the  House  of  Lords,  to  which  the  king  would  have  called 
his  ministers,  would  have  become  far  more  important  than  the 
House  of  Commons.  The  act  of  Anne  is  the  basis  of  much 
intricate  legislation.  Parliament,  in  enabling  the  king  to 
create  a  new  office, — and  owing  to  the  appropriation  of  supplies, 
it  has  been  very  difficult  for  the  king  to  create  a  new  office 
without  act  of  parliament — Parliament  I  say  has  generally 
provided  in  express  words  into  which  of  three  classes  the 
office  shall  fall :  (a)  shall  it  be  wholly  incompatible  with  a  seat 
in  the  House  of  Commons  ?  or  (£)  shall  acceptance  ot  it  vacate 
a  seat,  but  the  holder  be  eligible  for  election?  or  (c)  shall  it  not 


V  Office  as  Qualification  369 

render  its  holder  ineligible,  nor  even  make  him  vacate  his  seat 
if  he  has  one?  Out  of  these  miscellaneous  statutes  one  can  get 
a  rough  general  rule;  but,  of  course,  in  every  particular  case  one 
must  go  to  the  statute  book,  must  ask  whether  the  office  be  new 
or  old,  and  whether  any  express  provision  has  been  made  about 
it.  The  rough  general  outcome  is  this,  that  the  holders  of  the 
high  offices  of  state  can  sit  in  the  House,  but  acceptance  of 
such  an  office  vacates  the  seat.  On  the  other  hand  the  holders 
of  subordinate  offices  in  the  civil  service  of  the  crown  are  in 
general  absolutely  disqualified  from  sitting  in  the  House.  Our 
present  system  demands  that  the  heads  of  the  great  depart- 
ments, those  who  collectively  form  the  ministry,  shall  be  in 
parliament  and  answer  for  the  business  of  their  departments. 
I  say  our  system  demands  this ;  our  law,  of  course,  does  not 
demand  it ;  there  is  no  law  to  the  effect  that  ministers  must 
be  in  parliament,  and  sometimes  for  a  short  while  a  minister 
cannot  find  a  seat,  but  the  business  of  the  nation  could  not  be 
carried  on  in  the  wonted  way  unless  almost  all  the  ministers 
were  in  parliament,  and  if  they  could  not  find  seats,  they  would 
soon  have  to  resign  their  offices.  On  the  other  hand  the 
subordinate  officers  of  the  civil  service  are  excluded  by  law, 
and  the  consequence  is  that  we  have  a  permanent  civil  service, 
a  body  of  civil  servants  unidentified  with  any  particular  policy — 
were  they  in  parliament  they  might  easily  fall  out  with  their 
superiors,  and  we  should  have  the  whole  civil  service  changing 
with  the  ministry.  Such  is  the  general  outline.  Military  and 
naval  officers  are  not  excluded  from  the  House  of  Commons. 
As  to  pensioners  and  contractors  it  is  needless  to  speak. 

As  to  the  property  qualification.  We  have  seen  that  at 
times  during  the  Middle  Ages  attempts  were  made  to  secure  that 
the  so-called  knights  of  the  shire  should  really  be  knights,  or  at 
least  notable  esquires.  This  demand,  however,  seems  to  have 
become  obsolete  in  the  sixteenth  century,  and  there  was  no 
property  qualification  during  the  seventeenth  century.  In  1696 
a  bill  for  establishing  a  qualification  of  real  property  passed 
both  Houses ;  at  the  Revolution  the  landowners  had  become 
the  ruling  class :  but  the  king  refused  his  consent  to  the  bill. 
A  more  successful  effort  was  made  in  1710,  when  a  statute 
(9  Anne,  c.  5)  was  passed,  establishing  that  a  member  must 

M.  24 


370  Constitiitional  History  PERIOD 

have  an  estate  in  land,  worth  per  annum  for  a  county  member 
£600,  for  a  borough  member  ^"300.  This  remained  law  until 
after  the  Reform  Act;  but  in  1838  (i  and  2  Vic.,  c.  48)  a 
change  was  made ;  the  qualifying  income  was  still  to  be  of  the 
old  amount,  but  it  might  be  derived  from  personal  as  well  as 
real  property.  In  1858  (21  and  22  Vic.,  c.  26)  the  property 
qualification  disappears  altogether.  The  consequence  is  that 
a  man  may  be  qualified  to  sit  in  the  House  of  Commons, 
though  he  is  too  poor  to  have  a  vote  in  a  parliamentary  election. 

(4)  As  regards  the  mode  of  electing  members,  the  chief 
point  to  notice  is  the  passing  of  the  Ballot  Act  in  1872  (35  and 
36  Vic.,  c.  33),  down  to  which  time  elections  were  open.     The 
Ballot  Act  was  a  temporary  act  passed  for  but  eight  years,  but  it 
has  since  been  kept  alive  by  annual  acts,  and  I  suppose  that 
we  must  regard  it  as  having  become  in  fact  a  permanent  part 
of  the  constitution.    The  claims  of  the  ballot  had  been  pressed 
in  parliament  for  some  forty  years  before  it  was  adopted. 

The  registration  system  was,  as  already  said,  introduced 
by  the  first  Reform  Act.  No  one  can  vote  whose  name  is  not 
on  the  register,  and  in  general  (but  this  does  not  seem  quite 
true)  every  one  can  vote  whose  name  is  on  the  register.  The 
register  is  annually  revised  by  barristers  appointed  for  the 
purpose  by  the  judges,  revising  barristers  who  hear  claims  and 
objections.  In  1843  (6  and  7  Vic.,  c.  18)  an  appeal  from  the 
decision  of  the  revising  barrister  on  points  of  law  was  allowed 
to  the  Court  of  Common  Picas.  The  appeal  now  lies  to  the 
High  Court  of  Justice,  and  thence  with  its  permission  to  the 
Court  of  Appeal. 

(5)  The  power  of  determining  a  disputed  election  is  a 
different  matter.     We  have  seen  that  in  the  days  of  James  I 
the  House  of  Commons  claimed  and  won  this  power  as  one  of 
its  privileges.     In  the  eighteenth  century  it  was  shamefully 
misused  for  party  purposes.    The  question  whether  a  member 
was  duly  returned  or  no  became  a  question  of  confidence  in 
the  government      In    1770   the  famous  Grenville  Act  was 
passed  which  committed  this  power  to  a  committee  of  thirteen 
.members,  constituted  by  a  process  which  was  some  slight 
security  for  impartiality  (10  Geo.  Ill,  c.  16).     Some  further 
improvements  were  made  in  1839,  but  the  House  showed  itself 


V  D^sp^lted  Elections  371 

very  unwilling  to  surrender  what  it  regarded  as  a  privilege. 
At  last,  however,  in  1868,  an  act  was  passed  (31  and  32  Vic., 
c.  125)  which  made  over  the  matter  to  the  Court  of  Common 
Pleas.  The  jurisdiction  is  now  exercised  by  the  High  Court 
of  Justice.  There  are  several  different  grounds  on  which  an 
election  return  may  be  questioned.  Thus  it  may  be  alleged  that 
the  majority  of  lawful  votes  was  not  in  favour  of  the  candidate 
returned,  and  in  that  case  it  may  be  questioned  whether  some 
of  the  persons  who  actually  voted  were  lawfully  entitled  to 
vote.  As  regards  some  matters  the  register  will  apparently  be 
conclusive,  as  regards  other  matters  it  will  not:  thus  a  person's 
vote  might  be  struck  off  on  the  ground  that  he  was  an  infant 
or  an  alien,  but  not  on  the  ground  that  he  had  no  proper 
qualification  by  property,  occupation  or  residence1.  Or  again 
the  election  may  be  disputed  on  the  ground  of  bribery. 
The  legislation  against  bribery  and  other  corrupt  practices 
is  now  very  complicated  and  minute,  and  is  hardly  a  subject 
for  elementary  study.  Bribery  was  a  common  law  offence, 
and  an  election  might  be  made  void  on  the  score  of  bribery 
without  any  aid  from  statute  law.  Bribery  became  common 
after  the  Restoration.  Legislation  against  it  begins  in  1696, 
but  the  parliaments  of  the  last  century  were  never  in  earnest 
against  bribery,  and  were  extremely  jealous  of  any  inter- 
ference on  the  part  of  the  courts  of  law  with  any  matters 
connected  with  parliamentary  elections.  Something  was  done 
in  1762,  and  something  more  serious,  after  the  lapse  of  eighty 
years,  in  1841.  Our  modern  law  is  to  be  found  chiefly  in 
three  acts  belonging  respectively  to  1854,  1863  and  1883—^ 
whether  even  the  last  is  severe  enough  remains  to  be  seen. 

The  right  to  wages,  four  shillings  per  diem  for  the  knight 
of  the  shire,  two  shillings  for  the  burgess,  has  never  been 
expressly  abolished — it  was  still  exacted  in  the  seventeenth 
century — but  we  may  well  doubt  whether  the  redistribution 
of  seats  has  not  tacitly  abolished  it. 

(6)  A  member  of  the  House  of  Commons  may  cease  to 
be  a  member  by  death,  by  a  resolution  of  the  House  declaring 
him  insane,  by  becoming  an  alien  or  a  peer,  by  taking  orders, 

1  Stepney  Election  Petition,  1866,  17  Q.  B.  JD.  54. 

«4 — 2 


372  Constitutional  History  PERIOD 

by  conviction  for  corrupt  practices  or  for  certain  other  crimes 
(we  have  noticed  these  disqualifications),  by  remaining  bank- 
rupt for  six  months,  by  acceptance  of  office.  A  member  has 
no  power  to  resign  his  seat.  It  is  well  known,  however,  that 
this  rule  is  evaded ;  the  member  who  desires  to  resign  is 
granted  the  stewardship  of  the  Chiltern  Hundreds  or  some 
other  nominal  office  under  the  crown,  and  this  under  the  act 
of  Anne  vacates  his  scat  Possibly  the  office  would  be  denied 
him  if  he  sought  it  in  order  to  escape  expulsion. 

The  House  has  an  undoubted  power  of  expelling  a  member, 
and  the  law  does  not  attempt  to  define  the  cases  in  which  it 
may  be  used.  If  the  House  voted  the  expulsion  of  A.B.  on 
the  ground  that  he  was  ugly,  no  court  could  give  A.B.  any 
relief.  The  House's  own  discretion  is  the  only  limit  to  this 
power.  Probably  it  would  not  be  exercised  now-a-days, 
unless  the  member  was  charged  with  crime  or  with  some 
very  gross  misbehaviour  falling  short  of  crime,  and  in  general 
the  House  would  wait  until  he  had  been  tried  and  convicted 
by  a  court  of  law.  In  1856  a  member  who  had  been 
indicted  for  fraud  and  who  had  fled  from  the  accusation 
was  expelled. 

During  the  seventeenth  century,  when  the  House  expelled 
a,  member,  it  often  declared  him  incapable  of  being  re-elected. 
This  of  course  was  a  considerably  greater  exercise  of  power 
than  mere  expulsion.  In  1769  the  House  expelled  John 
Wilkes  for  a  libel.  He  was  immediately  re-elected  without 
a  con  test:  then  the  House  resolved  that  having  been  expelled 
he  was  incapable  of  sitting  during  the  present  parliament,  and 
declared  the  re-election  void.  Again  he  was  elected,  and  again 
the  election  was  declared  void.  As  the  passions  of  the  House 
cooled  it  came  to  the  conclusion  that  it  had  acted  illegally, 
and  in  1782  the  resolution  of  1769  was  expunged  from  the 
journals  as  subversive  of  the  rights  of  the  whole  body  of 
electors  of  this  kingdom.  We  may  take  it  then  as  certain 
that  the  House  has  no  power  to  declare  a  man  ineligible. 
Without  being  expelled  a  member  may  be  suspended  from 
sitting  in  the  House  for  a  certain  time ;  of  late  years  this 
power  has  been  not  infrequently  exercised. 


V  The  Triennial  Acts  373 


IV.     Frequency  and  Duration  of  Parliament. 

As  regards  the  frequency  of  parliaments,  there  is  still  in 
force  one  statutory  enactment.  There  are  altogether  five  acts 
to  be  remembered.  First  there  are  the  two  old  acts  of 
Edward  III  (1330  and  1362)  about  annual  parliaments. 
These  were  practically  overridden,  though  not  definitely 
repealed  by  the  three  later  acts  that  I  have  to  mention ; 
and  just  lately  they  have  been  repealed  as  obsolete;  the 
act  of  1362  was  repealed  in  1863,  the  act  of  1330  in  1881 
(44  and  45  Vic.,  c.  59).  Then  there  is  the  act  of  1641 
(16  Car.  I,  c.  i),  which  provided  that  a  parliament  should  be 
holden  at  least  in  every  third  year,  even  though  not  summoned 
by  the  king.  This  was  repealed  in  1664  by  16  Car.  II,  c.  I,  as 
contrary  to  the  king's  just  rights,  and  instead  thereof  it  was 
enacted  merely  that  the  sitting  and  holding  of  parliaments 
shall  not  be  intermitted  above  three  years  at  the  most  This 
again  was  repealed  in  1887  by  50  and  51  Vic.,  c.  59,  as 
unnecessary  on  account  of  the  act  of  William  and  Mary, 
which  I  am  about  to  name.  The  act  of  William  and  Mary 
(6  and  7  W.  and  M.,  c.  2,  1694),  which  settled  the  duration  of 
parliament  at  three  years,  provided  also  that  a  parliament 
shall  be  holden  once  at  least  in  every  three  years ;  and  this 
provision  is  still  in  force,  and  is  the  only  enactment  touching 
the  frequency  of  parliaments  that  is  in  force,  if  we  except  the 
vague  words  of  the  Bill  of  Rights,  that  parliaments  ought  to 
be  held  frequently. 

As  a  matter  of  fact,  however,  we  know  that  parliament  sits 
every  year.  I  think  that  a  parliament  has  sat  in  every  year 
since  the  Revolution.  We  know  also  why  this  is  necessary — 
(i)  the  maintenance  of  a  standing  army  is  only  legalized  for 
a  year  at  a  time,  (2)  supply  is  only  granted  to  the  crown 
sufficient  for  one  year's  expenditure.  In  this  case  therefore 
practical  necessity  lays  down  a  rule  more  stringent  than  that 
which  stands  upon  the  statute  book. 

As  to  the  duration  of  parliaments  we  must  note  a  change. 
The  first  limit  set  to  the  power  of  the  crown  in  this  direction 
was,  if  we  neglect  the  act  of  the  Long  Parliament  which 


374  Constitutional  History  PERIOD 

rendered  that  assembly  indissoluble  without  its  own  consent, 
the  Triennial  Act  of  1694  (6  and  7  Will  III,  c.  2),  which  laid 
down  the  rule  that  no  parliament  should  endure  for  longer 
than  three  years.  The  Septennial  Act  of  1715  substituted 
seven  for  three  years.  It  has  been  noticed  that  this  act  is  an 
excellent  illustration  of  the  supremacy  of  parliament :  a  parlia- 
ment summoned  for  three  years  by  its  own  act  declared  that 
it  might  sit  for  seven  years — if  for  seven  years  why  not  for 
seventy?  Various  schemes  for  shortening  the  duration  of 
parliament  have  from  time  to  time  found  favour — some  have 
advocated  triennial,  others  annual  parliaments — at  the  present 
moment  we  hear  little  of  them1. 

The  king  without  breaking  the  law  can  dissolve  a  parlia- 
ment whenever  he  pleases.  Any  restraints  that  there  are  on 
this  power  are  not  legal  restraints.  We  are  not  likely  to  see 
it  abused.  The  king  must  have  supplies,  to  get  supplies  he 
must  have  a  parliament,  there  can  be  no  good  in  his  dissolving 
a  parliament  unless  he  believes  that  it  does  not  fairly  represent 
the  wishes  of  the  nation. 

In  1867  the  continuance  of  parliament  was  made  inde- 
pendent of  the  demise  of  the  crown.  If  when  the  king  dies  a 
parliament  is  in  existence  it  will  continue  in  existence  just  as 
though  nothing  had  happened,  but  of  course  may  be  dissolved 
by  the  new  king  (30  and  31  Vic.,  c.  102).  The  first  step  in 
this  direction  was  taken  in  1696  (7  and  8  Will.  Ill,  c.  15) — 
parliament  was  to  endure  for  six  months  after  the  king's  death, 
unless  sooner  dissolved  by  his  successor. 


V.    Privileges  of  Parliament. 

The  privileges  of  the  two  Houses  occupy  a  large  space  in 
our  books  of  constitutional  law  and  history.  Their  importance 
in  the  past  has  been  great;  their  importance  in  the  present 
we  are  apt,  I  think,  to  overrate.  Let  us  briefly  see  what 
they  come  to ;  for  a  fuller  account  I  can  refer  you  to 
Sir  William  Anson. 

1  The  proposal  to  limit  the  duration  of  parliament  to  five  years  formed  part  of 
the  scheme  shadowed  out  by  the  Prime  Minister  on  June  34,  1907,  and  was 
embodied  in  the  Parliament  Act  of  1911. 


V  Freedom  of  Speech  375 

(l)  Freedom  of  speech.  Freedom  of  speech  as  against 
the  crown  was,  we  may  say,  secured  at  the  Revolution  ;  since 
then  there  have  been  no  legal  proceedings  by  the  crown 
against  members  for  words  uttered  in  the  House.  During  the 
last  century,  however,  the  king  did  occasionally  as  a  matter  of 
fact  take  notice  of  opposition  to  his  wishes,  and  make  things 
unpleasant  for  the  opponents  by  depriving  them  of  offices. 
This  it  was  difficult  to  prevent,  the  offices  were  held  during 
the  king's  good  pleasure,  and  he  was  not  bound  to  give  a 
reason  when  he  exercis%ed  the  legal  power  of  dismissal.  We 
are  not  very  likely  to  hear  of  any  repetition  of  such  pro- 
ceeding at  the  present  day.  At  the  present  day  it  may  be 
more  important  to  notice  that  this  freedom  of  speech  holds 
good  not  only  against  the  crown,  but  against  private  individuals 
also.  A  member  speaking  in  either  House  is  quite  outside  the 
law  of  slander.  He  may  accuse  any  person  of  the  basest 
crimes,  may  do  so  knowing  that  his  words  are  false,  and  yet 
that  person  will  have  no  action  against  him.  Had  he  uttered 
the  words  elsewhere  he  might  have  had  to  answer  for  them  in 
a  court  of  law,  but  for  what  he  says  in  the  House  he  cannot  be 
sued.  In  1837  an  attempt  to  extend  this  privilege  from  words 
uttered  in  the  House  to  words  printed  by  the  authority  of  the 
House  gave  rise  to  the  famous  case  of  Stockdale  v.  Hansard, 
and  to  a  violent  collision  between  the  Commons  and  the  Court 
of  King's  Bench.  Messrs  Hansard,  by  order  of  the  House  of 
Commons,  printed  a  report  of  the  inspectors  of  prisons,  which 
contained  some  defamatory  words  about  Stockdale.  He  sued 
Hansard :  and  he  failed  because  the  jury  thought  that  the 
words  were  true ;  but  Hansard  had  in  the  first  instance  set  up 
the  order  of  the  House  as  a  complete  defence,  and  Denman,  C.J., 
and  the  other  judges  of  the  court,  held  that  it  was  no  defence  : 
the  order  of  the  House  of  Commons  would  not  justify  anyone 
in  publishing  a  libel.  Stockdale  brought  another  action;  the 
House  of  Commons  took  offence,  resolved  that  there  was  a 
breach  of  privilege,  and  refused  to  let  their  printer  put  in  any 
defence  but  the  order  of  the  House  ;  Stockdale  obtained  a 
verdict  for  £600  damages,  and  the  sheriffs  of  Middlesex  levied 
that  amount.  Then  the  House  committed  the  sheriffs  to  prison, 
as  also  Stockdale  and  his  solicitor.  The  sheriffs  obtained  a 


376  Constitutional  History  PERIOD 

writ  of  habeas  corpus  before  the  King's  Bench.  The  serjeant- 
at-arms  who  had  them  in  custody  returned  that  they  were 
imprisoned  under  a  warrant  of  the  Speaker  for  a  contempt  of 
the  House  of  Commons.  Upon  this  the  judges  held  that  they 
had  no  power  to  set  the  prisoners  free,  and  so  the  wretched 
sheriffs  remained  in  prison  for  doing  what  the  court  declared 
was  their  legal  duty.  Thereupon  a  bill  was  introduced  to 
settle  this  disputed  privilege  for  the  future;  and  it  passed  into 
an  act  which  provides  that  no  civil  or  criminal  proceedings 
can  be  taken  in  respect  of  any  defamatory  matter  contained 
in  any  paper  printed  by  the  order  of  the  House.  This  settled 
one  point ;  as  to  the  point  raised  by  the  committal  of  the 
sheriffs  we  must  speak  again. 

Of  course  the  principle  that  a  member  speaking  in  the 
House  may  speak  ill  with  impunity  does  not  involve  the 
principle  that  I,  or  anyone  else,  may  safely  report  his  speeches. 
However,  it  has  been  decided  that  the  editor  of  a  newspaper 
may  publish  fair  and  honest  reports  of  what  has  been  said  in 
parliament  and  cannot  be  sued  for  this,  though  he  reports 
remarks  which  are  untrue  and  defamatory.  This  was  decided 
in  1868  in  Wason  v.  Walter  (L.R.  4,  O.B.  73),  an  action 
brought  against  the  editor  of  the  Times  for  reporting  some 
words  uttered  by  Lord  Chelmsford  in  the  House  of  Lords 
which  accused  the  plaintiff  of  falsehood  and  malignity. 

We  ought  here  to  remember  that  during  the  whole  of  the 
last  century  the  Houses  insisted  that  no  one  was  entitled  to 
publish  reports  of  their  proceedings,  and  committed  to  prison 
those  who  broke  the  rule.  This  perhaps  we  ought  to  regard 
as  in  its  origin  a  measure  of  self-protection  against  the  crown ; 
so  long  as  the  Houses  had  to  dread  the  action  of  the  crown, 
they  did  well  to  insist  that  their  proceedings  should  be  secret. 
To  this  day  reports  are  made  on  sufferance  and  published  on 
sufferance.  The  House  at  any  time  may  order  strangers  to 
withdraw ;  the  House  may  at  any  time  resolve  that  its  pro- 
ceedings shall  not  be  reported,  and  commit  to  prison  as  for  a 
contempt  all  those  who  report  them.  However,  save  in  some 
extraordinary  emergency,  we  are  not  likely  now-a-days  to 
find  either  of  the  Houses  desiring  to  hide  its  light  under 
a  bushel. 


V  Freedom  from  Arrest  377 

(2)  Freedom  from  arrest  is  now  no  very  important  matter, 
because  this  immunity  does  not  extend  to  imprisonment  on 
the  charge  of  an  indictable  offence,  and  in  1869  imprisonment 
for  debt  was  abolished.     There  are  still  some  cases  in  which 
a  person  may  be  imprisoned  in  the  course  of  civil  proceedings, 
as  for  not  paying  trust  monies  which  he  has  been  ordered  to 
pay  by  a  court  of  justice,  and  in  these  cases  a  member  of 
parliament  would  enjoy  a  special  immunity;  but  this  is  no 
great  matter. 

In  the  case  of  members  of  the  House  of  Commons  this 
privilege  is  enjoyed  during  the  session  of  parliament,  and  for 
40  days  before  and  40  days  after.  On  the  other  hand  a 
peer,  as  I  understand,  enjoys  this  immunity  at  all  times. 
Sir  William  Anson1  seems  to  deny  this,  and  to  confine  the 
privilege  'within  the  usual  times  of  privilege  of  parliament1 
(whatever  that  may  mean),  but  certainly  the  old  rule  was 
that  'the  person  of  a  peer  is  for  ever  sacred  and  inviolable1  (as 
Blackstone  phrases  it),  and  I  know  not  how  it  has  been 
altered  ;  further  Irish  and  Scottish  peers  who  have  no  seats 
in  the  House  of  Lords  enjoy  this  privilege:  it  is  indeed  rather 
a  privilege  of  the  peerage  than  a  privilege  of  parliament. 

(3)  The  power  of  punishing  for  contempt.     First  as  to  the 
extent  and  nature  of  the  punishment.     The  House  of  Lords 
has,  it  seems,  power  to  fine  and  to  imprison,  and  it  can  imprison 
for  a  specified  term  which  may  endure  beyond  the  duration 
of  the  session.     Thus  in  1850,  two  days  before  a  prorogation, 
it  committed  two  persons  to  prison  for  a  fortnight.     I  do  not 
think  that  it  has  of  late  exercised  its  power  of  imposing  a 
fine,  but  we  cannot  deny  that  the  power  exists.    On  the  other 
hand  it  seems  that  the  House  of  Commons  cannot  impose  a 
fine;  it  has  not  done  so  since  1666,  and  any  imprisonment 
that  it  inflicts  conies  to  an  end  with  the  end  of  the  session. 
Of  the  power  of  expelling  or  suspending  its  own  members  we 
have  already  spoken. 

In  the  second  place,  for  what  offences  can  the  House  inflict 
this  punishment  of  imprisonment?  Our  answer  must  be  that 
it  is  the  power  of  the  House  to  inflict  it  in  a  quite  arbitrary 

1  Law  and  Custom  of  the  Constitution^  Parliament,  3rd  ed.  p.  226. 


378  Constitutional  History  PERIOL 

way.  In  the  last  century  it  was  established  by  decisions  of 
the  law  courts  that  if  a  prisoner  committed  by  the  House 
obtained  a  writ  of  habeas  corpus,  and  the  return  to  the  writ 
was  that  he  had  been  committed  for  a  contempt  of  the  House, 
the  court  would  inquire  no  further  but  would  remand  the 
prisoner  to  his  gaol.  Some  precedent  for  this  doctrine  was 
to  be  found  in  the  fact  that  the  superior  courts  have  long 
exercised  a  power  of  summarily  committing  persons  for  con- 
tempt, and  a  commitment  made  by  one  of  them  could  not  be 
questioned  in  another ;  thus  if  the  prisoner  had  been  com- 
mitted for  contempt  by  the  Court  of  Common  Pleas,  it  would 
have  been  useless  for  him  to  obtain  a  writ  of  habeas  corpus 
in  the  King's  Bench :  on  its  appearing  that  he  had  been 
committed  by  the  Court  of  Common  Pleas  for  contempt, 
the  judges  of  the  sister  court  would  have  refused  to  inquire 
whether  any  contempt  had  actually  been  committed.  Still 
it  will  strike  you  that  each  House  has  by  this  means  obtained 
just  that  power  of  arbitrary  imprisonment,  which  was  wrested 
from  the  council  of  Charles  I.  This,  however,  was  established 
by  a  series  of  decisions  in  the  last  century,  and  is  not  now 
to  be  doubted.  Possibly  if  the  House  in  its  warrant  for 
commitment  stated  the  facts  of  the  case  a  court  of  law 
would  consider  whether  they  constituted  a  contempt ;  but  if 
it  says  merely  that  A.B.  is  committed  for  contempt,  A.B.  will 
appeal  to  the  law  courts  in  vain.  We  have  seen  this  in  the 
case  of  the  sheriffs  of  Middlesex :  they  had  to  remain  in 
prison,  though  in  the  view  of  the  Court  of  King's  Bench  they 
had  only  done  what  it  was  their  legal  duty  to  do.  Again  a 
person  so  committed  would  have  no  action  against  the  officers 
of  the  House  who  arrested  him. 

Thus  it  would  seem  that  the  House  has  a  legal  power  to 
turn  into  a  contempt  just  what  it  pleases,  and  the  same  may 
be  said  of  the  superior  courts  of  law.  Still  we  may  inquire 
how  this  power  has  been  actually  exercised:  and  on  the 
whole  it  has  of  late  been  exercised  temperately  enough  save 
in  some  moment  of  irritation,  such  as  that  which  occurred 
when  the  House  of  Commons  was  at  issue  with  the  Court 
of  King's  Bench  over  the  case  of  Stockdale  v.  Hansard  and 
committed  the  sheriffs  of  Middlesex. 


V  Breaches  of  Privilege  379 

Sir  Erskine  May  divides  breaches  of  privilege  into  four 
classes:  (i)  disobedience  to  general  orders  or  rules  of  either 
House,  (2)  disobedience  to  particular  orders,  (3)  indignities 
offered  to  the  character  of  proceedings  of  parl  iament,  (4)assaults 
or  insults  upon  members  or  reflections  upon  their  character  and 
conduct  in  parliament  or  interference  with  officers  of  the  House 
in  discharge  of  their  duties1.  His  instances  of  the  first  class 
consist  almost  entirely  of  publications  of  debates  at  a  time 
when  this  was  forbidden  by  general  rules  of  the  House.  In 
the  second  place  we  have  the  neglect  of  orders  directing 
persons  to  come  and  be  examined  before  the  House  or  before 
a  committee,  and  breaches  of  other  similar  orders.  In  the 
third  class  we  have  libellous  reflections  on  parliament  The 
last  case  that  he  gives  is  from  1819,  when  Mr  Hobhouse  was 
sent  to  prison  by  the  House  of  Commons  for  *  a  scandalous 
libel  containing  matter  calculated  to  inflame  the  people  into 
acts  of  violence  against  the  legislature  and  against  this  House 
in  particular/  Then  as  to  attacks  on  individual  members : 
assaults  on  members  on  their  way  to  or  from  the  House  have 
been  punished,  also  libels  on  members.  In  the  past  this 
power  has  been  liberally  used,  but  the  more  modern  doctrine 
is  that  in  order  to  be  a  contempt  of  the  House  the  libel  must 
be  a  libel  on  the  member  in  his  character  of  member:  to 
accuse  a  member  of  having  taken  a  bribe  for  his  vote,  would 
doubtless  be  treated  as  a  contempt ;  on  the  other  hand  if  one 
accused  a  member  of  bigamy  he  would  probably  be  left  to  use 
his  legal  remedy,  an  action  for  slander  or  libel.  Then  to 
obstruct  the  officers  of  the  House  in  the  execution  of  their 
duties,  and  again  to  tamper  with  witnesses  who  are  to  give 
evidence  before  the  House  are  treated  as  contempts. 

To  a  certain  extent  the  House  acts  according  to  rules; 
precedents  are  collected  and  to  some  extent  respected,  but 
too  often  we  see  questions  of  privilege  treated  as  party 
questions,  and  then  the  House,  whatever  it  may  think  of  itself, 
becomes  truly  contemptible.  That  it  has  a  very  dangerous 
power  in  its  hands  is  obvious. 

I  do  not  think  it  convenient  (though  this  is  sometimes 
done)  to  treat  as  matters  of  privilege  the  special  functions  of 

1  Constitutional  History  of  \dngland,  vol.  II,  c.  7. 


380  Constitutional  History  PERIOD 

the  two  Houses,  such  e.g.  as  the  special  function  of  the  House 
of  Commons  in  relation  to  money  bills  or  the  special  function 
of  the  House  of  Lords  as  a  court  of  law.  These  are  the 
outcome  of  rules  of  constitutional  law,  and  stand  on  a  different 
footing  from  the  matters  that  we  have  been  considering.  The 
same  may  be  said  of  the  power  of  the  House  of  Commons  to 
decide  all  matters  relating  to  disputed  elections,  a  power  which, 
as  we  have  seen,  it  has  recently  made  over  to  the  courts  of  law. 

VI.     The   Work  of  Parliament. 

We  have  now  to  see  what  the  work  of  parliament  is. 
Doubtless  its  most  important  work  is  that  of  making  statutes. 
But  this  is  not  all  that  it  does.  I  leave  out  of  sight  for  a  time 
the  judicial  power  of  the  House  of  Lords  as  a  court  for  the  trial 
of  peers,  and  as  a  court  to  which  appeals  can  be  brought  from 
the  lower  courts  ;  also  I  leave  out  of  sight  the  procedure  by  way 
of  impeachment — these  matters  are  better  treated  in  connexion 
with  the  administration  of  justice.  But  we  ought  to  notice 
that  the  Houses  of  parliament  do  a  great  deal  of  important 
work  without  passing  statutes  or  hearing  causes.  In  the  first 
place  they  exercise  a  constant  supervision  of  all  governmental 
affairs.  The  ministers  of  the  king  are  expected  to  be  in 
parliament  and  to  answer  questions,  and  the  House  may  be 
asked  to  condemn  their  conduct.  The  legal  power  which 
enables  the  Houses  to  insist  that  ministers  shall  answer  what 
are  deemed  to  be  proper  questions  is  in  the  last  resort  the 
power  of  withholding  supplies,  or  of  refusing  to  legalize  the 
existence  of  a  standing  army.  Of  course  it  is  needless  to 
have  recourse  to  these  powers — their  exercise  would  throw 
the  whole  business  of  the  country  out  of  gear— still  there 
those  powers  are  and  a  ministry  could  not  long  exist  if  it  had 
not  the  confidence  of  the  House  of  Commons  or  refused  to 
give  such  information  as  the  House  thought  itself  entitled  to 
have.  Then  again  by  means  of  committees  the  Houses  now 
exercise  what  we  may  call  an  inquisitorial  power.  If  anything 
is  going  wrong  in  public  affairs  a  committee  may  be  appointed 
to  investigate  the  matter  ;  witnesses  can  be  summoned  to  give 
evidence  on  oath,  and  if  they  will  not  testify  they  can  be 
committed  for  contempt.  All  manner  of  subjects  concerning 


V  Statutes  381 

the  public  have  of  late  been  investigated  by  parliamentary 
commissions;  thus  information  is  obtained  which  may  be 
used  as  a  basis  for  legislation  or  for  the  recommendation  of 
administrative  reforms. 

But  the  chief  function  of  parliaments  is  to  make  statutes. 
We  have  observed  the  history  of  the  legislative  formula ;  for 
two  centuries  it  has  been  accurately  preserved, c  Be  it  enacted 
by  the  king's  most  excellent  majesty  by  and  with  the  advice 
and  consent  of  the  lords,  spiritual  and  temporal,  and  commons 
in  this  present  parliament  assembled  and  by  the  authority  of 
the  same/  The  essence  of  the  statute  seems  to  be  the  con- 
currence of  the  king,  the  House  of  Lords  and  the  House  of 
Commons.  Each  House  we  know  has  a  well-settled  order  of 
business :  thus  it  requires  that  every  bill  shall  be  read  three 
times1.  This  procedure  is  in  part  defined  by  the  standing 
orders  which  each  House  makes  for  itself,  partly  by  tradition. 
In  its  main  outlines  this  procedure  is  ancient ;  thus  we  can 
trace  the  three  readings  to  the  end  of  the  Middle  Ages,  but  it 
is  not  a  procedure  imposed  by  law.  Each  House  has  a  very 
large  liberty  of  regulating  its  own  procedure,  and  just  at 
present  we  constantly  see  the  House  of  Commons  engaged  in 
this  task.  But  not  only  has  each  House  the  power  of  making 
rules  for  itself,  we  must  add  that  a  disregard  of  its  rules  will 
not  vitiate  the  statute.  A  court  of  law,  we  may  safely  say, 
would  never  go  into  the  question  whether  an  act  has  been 
passed  in  disregard  of  the  usual  formalities.  The  furthest 
that  it  would  go  would  be  to  insist  that  the  whole  act  had 
received  the  consent  of  king,  lords,  and  commons;  it  would 
never  for  example  permit  the  question  to  be  raised  whether  a 
bill  had  been  read  three  times — the  rule  which  requires  three 
readings,  ancient  and  punctually  observed  though  it  may  be, 
is  no  rule  of  law.  On  the  other  hand  the  assent  of  the  king 
and  the  two  Houses  to  the  whole  act  in  its  ultimate  form  seems 
essential.  Some  delicate  questions  might  arise  as  to  this  in 
case  the  officials  of  the  House  made  mistakes.  Suppose  a  bill 
carried  through  the  House  of  Commons ;  the  lords  make 
amendments  in  it ;  it  ought  then  to  go  back  to  the  commons 

1  This  principle  has  been  modified  by  the  Parliament  Act  of  1911  (i  and 
a  Geo.  V,  c.  13)  which  provides  that  under  certain  circumstances  bills  may  become 
statutes  without  the  consent  of  the  House  of  Lords.  See  Appendix. 


382  Constitutional  History  PERIOD 

in  order  that  they  may  consider  whether  they  will  assent  to 
the  bill  thus  amended.  But  suppose  that  this  step  is  omitted; 
that  the  bill  is  then  presented  to  the  king  and  that  he  gives 
his  assent  Is  this  bill  a  statute  ?  I  take  it  that  it  is  not ;  but 
the  question  how  far  a  court  of  law  would  hold  itself  bound 
by  a  statement  on  the  bill  that  it  had  received  the  assent  of 
king  and  both  Houses,  whether  it  would  permit  a  litigant  to 
dispute  this  statement,  is  a  somewhat  difficult  question.  Such 
mistakes  have  occurred  more  than  once  in  the  present  reign. 
Thus  in  1844  there  were  two  Eastern  Counties  Railway  bills 
in  parliament;  one  had  passed  all  its  stages,  the  other  was 
still  pending  in  the  House  of  Lords,  when  by  mistake  the 
queen  expressed  her  consent  to  the  latter  instead  of  to  the 
former.  The  mistake  was  discovered,  and  another  act  was 
passed  declaring  that  the  bill  to  which  assent  had  been  given 
should  not  be  deemed  to  have  received  the  royal  assent. 
Other  mistakes  of  a  similar  kind  have  been  similarly  corrected. 
I  may  explain  that  a  vellum  copy  preserved  in  the  House  of 
Lords  is  the  ultimate  evidence  of  a  statute.  Perhaps  a  court 
of  law  would  allow  a  litigant  to  prove  that  as  a  matter  of  fact 
this  document  had  never  received  the  consent  of  king,  lords 
and  commons  ;  but  I  am  not  sure  of  this. 

For  a  long  time  past  political  theorists  have  insisted  on 
the  distinction  between  legislation  and  the  other  functions  of 
government,  and  of  course  the  distinction  is  important  though 
it  is  not  always  easy  to  draw  the  line  with  perfect  accuracy. 
But  it  seems  very  necessary  to  notice  that  the  power  of  a  statute 
is  by  no  means  confined  within  what  a  jurist  or  a  political 
philosopher  would  consider  the  domain  of  legislation.  A 
vast  number  of  statutes  he  would  class  rather  as  privilegia 
than  as  leges ;  the  statute  lays  down  no  general  rule,  but  deals 
only  with  a  particular  case.  This  is  particularly  noticeable 
in  the  last  century.  The  Revolution  had,  once  for  all,  put  an 
end  to  the  ordaining  and  dispensing  powers  of  the  king,  and 
parliament  sought  to  do  the  work  itself  by  means  of  statutes. 
If  we  take  up  any  volume  of  eighteenth  century  statutes 
we  find  it  very  bulky.  Apparently  parliament  got  through 
much  more  work  then  than  it  gets  through  in  our  own  day. 
But  on  inspection  we  find  that  anything  that  in  the  strictest 
sense  can  be  called  legislation,  any  alteration  of  the  general 


V  Government  by  Statute  383 

rules  of  law,  was  much  rarer  then  than  it  is  in  our  own  day, 
rarer  than  it  was  in  the  days  of  the  three  first  Edwards.  I 
take  up  a  list  of  the  statutes  of  1786.  There  are  160  so-called 
public  acts,  and  60  so-called  private  acts.  But  listen  to  the  , 
titles  of  a  few  of  the  public  acts :  an  act  for  establishing  a  i 
workhouse  at  Havering,  an  act  to  enable  the  king  to  license 
a  playhouse  at  Margate,  an  act  for  erecting  a  house  of  cor- 
rection in  Middlesex,  an  act  for  incorporating  the  Clyde 
Marine  Society,  an  act  for  paving  the  town  of  Cheltenham, 
an  act  for  widening  the  roads  in  the  borough  of  Bodmin. 
Fully  half  of  the  public  acts  are  of  this  petty  local  character. 
Then  as  to  the  private  acts,  these  deal  with  particular  persons: 
an  act  for  naturalizing  Andreas  Emmerich,  an  act  for  enabling 
Cornelius  Salvidge  to  take  the  surname  of  Tutton,  an  act  for 
rectifying  mistakes  in  the  marriage  settlement  of  Lord  and 
Lady  Camelford,  an  act  to  enable  the  guardians  of  William 
Frye  to  grant  leases,  an  act  to  dissolve  the  marriage  between 
Jonathan  Twiss  and  Francis  Dorrill.  Then  there  are  almost 
countless  acts  for  enclosing  this,  that  and  the  other  common. 
One  is  inclined  to  call  the  last  century  the  century  of  privi- 
legia.  It  seems  afraid  to  rise  to  the  dignity  of  a  general 
proposition ;  it  will  not  say, €  All  commons  may  be  enclosed 
according  to  these  general  rules,1  'All  aliens  may  become 
naturalized  if  they  fulfil  these  or  those  conditions/  'All 
boroughs  shall  have  these  powers  for  widening  their  roads/ 
'All  marriages  may  be  dissolved  if  the  wife's  v  adultery  be 
proved/  No,  it  deals  with  this  common  and  that  marriage. 
We  may  attribute  this  to  jealousy  of  the  crown :  to  have 
erected  boards  of  commissioners  empowered  to  sanction  the 
enclosure  of  commons  or  the  widening  of  roads,  to  have  en- 
abled a  Secretary  of  State  to  naturalize  aliens,  would  have 
been  to  increase  the  influence  and  patronage  of  the  crown, 
and  considering  the  events  of  the  seventeenth  century,  it  was 
but  natural  that  parliament  should  look  with  suspicion  on 
anything  that  tended  in  that  direction. 

As  time  has  gone  on  parliament  has  become  much  less 
suspicious  of  the  crown,  because  'the  crown*  has  come  to 
mean  a  very  different  thing  from  what  it  meant  in  the  last 
century.  The  change  is  a  gradual  one,  but  I  think  we  may 


384  Constitutional  History  PERIOD 

say  that  it  becomes  very  apparent  soon  after  the  Reform 
Act  of  1832.  Parliament  begins  to  legislate  with  remarkable 
vigour,  to  overhaul  the  whole  law  of  the  country — criminal  law, 
property  law,  the  law  of  procedure,  every  department  of  the 
law — but  about  the  same  time  it  gives  up  the  attempt  to 
govern  the  country,  to  say  what  commons  shall  be  enclosed, 
what  roads  shall  be  widened,  what  boroughs  shall  have  paid 
constables  and  so  forth.  It  begins  to  lay  down  general  rules 
about  these  matters  and  to  entrust  their  working  partly  to 
officials,  to  secretaries  of  state,  to  boards  of  commissioners, 
who  for  this  purpose  are  endowed  with  new  statutory  powers, 
partly  to  the  law  courts.  I  will  give  a  few  examples  of  what 
I  mean.  In  the  last  century  the  administration  of  the  poor 
law  was  altogether  a  local  affair  entrusted  to  the  parochial 
overseers  of  the  poor  and  the  county  justices.  By  the  great 
Poor  Law  Reform  Act  of  1834  certain  poor  law  commis- 
sioners were  given  very  large  statutory  powers  of  regulating 
this  matter  for  the  whole  kingdom.  Later  statutes  gave  them 
ever  greater  powers.  In  1871  these  commissioners  gave  place 
to  the  Local  Government  Board,  which  exercises  very  great 
powers  over  local  affairs.  A  vast  number  of  things  that  in  the 
last  century  could  only  have  been  done  for  the  parish  of  Little 
Peddlington  by  a  statute  can  now  be  done  without  statute 
under  an  order,  or  with  the  sanction  of  the  Local  Government 
Board.  Then  again  in  the  last  century,  if  an  alien  wished  to 
become  naturalized  he  had  to  go  to  parliament  for  a  statute. 
In  1844  a  general  statute  was  passed  giving  power  to  the 
Home  Secretary  to  grant  certificates  of  naturalization :  thus 
recourse  to  parliament  was  rendered  unnecessary.  Then  again 
in  the  last  century  there  was  no  court  which  had  power  to 
dissolve  a  marriage.  The  ecclesiastical  courts  could  pronounce 
a  divorce,  a  mensa  et  thoro>  could  decree,  that  is  to  say,  that 
the  husband  and  wife  need  not  live  together,  but  in  order  to 
dissolve  their  union  and  set  them  free  to  marry  again,  recourse 
to  parliament  was  necessary,  and  acts  dissolving  the  marriage 
between  X  and  Y  were  by  no  means  uncommon.  In  1857 
however  a  new  Court  for  Divorce  and  Matrimonial  Causes 
was  created,  and  was  empowered  to  dissolve  marriages  when- 
ever certain  facts  should  be  proved. 


V  Legislation  and  Government          385 

These  are  but  a  few  examples  of  a  general  tendency  which 
has  been  at  work  for  the  last  fifty  years,  a  tendency  we  may 
say  on  the  part  of  parliament  to  confine  itself  to  the  work  of 
legislation,  of  framing  general  rules  of  law,  and  to  entrust  the 
power  of  dealing  with  particular  cases  to  the  king's  ministers, 
to  boards  of  commissioners,  to  courts  of  law.  Still  parliament 
has  not  renounced  and,  according  to  our  accepted  theory  of 
sovereignty,  could  not  renounce  the  power  of  dealing  with 
particulars,  and  in  certain  cases  it  still  habitually  exercises 
that  power.  The  most  important  instance  of  this  is  to  be  found 
in  the  appropriation  of  supplies.  When  a  supply  of ^ money 
is  granted  to  the  king,  parliament  proceeds  to  appropriate 
that  supply  with  great  minuteness,  to  say,  that  is,  how  much 
of  it  may  be  spent  for  this  purpose,  how  much  for  that.  Thus 
in  1886  it  appropriated  £2,902,900  for  the  payment  of  seamen 
and  marines,  £964,400  for  their  victuals  and  clothing,  £11,477 
for  the  maintenance  of  the  British  Museum  and  the  Natural 
History  Museum,  £2,100,000  for  public  education,  £1,000  as 
a  gratuity  for  the  widow  of  a  certain  distinguished  public 
servant.  Now  an  act  saying  to  the  queen,  'You  may  spend 
£1,000  in  giving  a  gratuity  to  Lady  A'  is  certainly  not  in 
the  jurist's  sense  a  law,  it  is  no  general  rule,  but  this  minute 
appropriation  of  supplies  is  a  most  important  part  of  the  work 
of  every  session,  and  it  is  effected  by  statute  ;  the  same  formula 
is  used  as  though  a  general  law  were  being  made  :  it  is  enacted 
"by  the  king's  majesty  with  the  advice  and  consent"  etc. 
Nor  must  you  suppose  that  this  instance,  though  it  is  the  most 
important,  stands  alone.  To  take  another  very  common  case: 
a  railway  company  wants  the  power  to  compel  landowners  to 
sell  the  land  necessary  for  the  construction  of  its  line  ;  it  must 
go  to  parliament  for  a  statute.  There  is  no  general  statute 
which  empowers  such  companies  to  force  the  sale  of  land,  but 
parliament  in  each  case  authorizes  this  particular  company  to 
compel  the  sale  of  those  particular  lands.  Parliament  has 
kept  this  matter  in  its  own  hands.  Again  it  is  not  very  often 
now-a-days  that  private  persons  succeed  in  obtaining  or  desire 
to  obtain  special  acts  of  parliament  dealing  with  their  par- 
ticular cases :  formerly  the  tenant  of  a  settled  estate  used 
sometimes  to  desire  to  sell  the  estate,  and  this  he  could  not 

M.  25 


386  Constitutional  History  PERIOD 

do  without  the  aid  of  a  statute  ;  recent  legislation  as  to  settled 
estates  has  made  it  much  easier  to  deal  with  settled  estates, 
and  private  estates  acts  have  become  very  unusual ;  still  they 
are  sometimes  wanted,  and  are  sometimes  passed. 

The  power  of  a  statute  to  descend  to  particulars  receives 
its  most  striking  and  terrible  illustration  in  an  act  of  pains 
and  penalties,  an  act  inflicting  punishment  upon  some  par- 
ticular person  for  some  particular  act.  We  have  before  this 
spoken  of  acts  of  attainder1.  The  last  instance,  I  believe,  of 
capital  punishment  being  thus  inflicted  was  that  of  Sir  John 
Fenwick,  who  was  executed  in  1697.  He,  no  doubt,  was 
guilty  of  high  treason  in  taking  part  in  the  plot  to  assassinate 
William  III,  but  it  was  impossible  to  get  two  witnesses  against 
him,  and  as  you  remember  two  witnesses  are  necessary  in 
case  of  high  treason.  So  instead  of  being  tried  in  a  court 
of  law,  he  was  attainted  by  act  of  parliament.  Since  then 
there  have  been  other  acts  inflicting  punishment,  but  never 
I  think  the  punishment  of  death;  thus  Atterbury  was  banished 
in  1720.  Now-a-days  such  acts  would  be  very  properly  con- 
demned, but  even  within  quite  recent  times  individuals  have 
been  disfranchised  by  act  of  parliament  on  account  of  bribery. 
In  1876  certain  voters  for  the  City  of  Norwich  were  thus 
disfranchised. 

An  act  then  can  punish;  so  also  it  can  absolve  from  punish- 
ment Acts  of  indemnity  are  occasionally  passed  freeing  this 
or  that  person  from  the  penal  consequences  of  what  they  have 
already  done.  Thus  a  year  or  two  ago  it  was  discovered  that 
certain  lords  had  sat  in  the  Upper  House  without  taking  the 
oaths,  and  had  thereby  incurred  very  heavy  money  penalties. 
Acts  were  passed  absolving  them  from  the  consequences  of 
their  inadvertence2.  A  curious  little  act  of  1887  has  just  met 
my  eye.  The  Duke  of  Connaught  was  Commander-in-chief 
of  the  Presidency  of  Bombay.  Under  a  statute  01  1793,  if 
any  Commander-in-chief  in  India  comes  home  to  Europe, 
he  thereby  resigns  his  office.  The  duke  wished  to  be  present 
at  the  Queen's  Jubilee.  An  act  of  parliament  was  passed 

1  See  above,  pp.  215 — 16,  319 — 20. 
3  43  and  44  Viet.  Private  Acts. 


V          The  Crown  and  the  Government      387 

enabling  him  to  do  this  without  forfeiting  his  command1.  A 
statute  about  so  trivial  a  matter  is,  I  think,  a  good  illustration 
of  the  supremacy  of  parliament.  If  it  can  do  the  greatest 
things,  it  can  do  the  least  also ;  if  it  can  make  general  laws 
for  a  vast  empire,  it  can  make  a  particular  exception  out  of 
them  in  favour  of  a  particular  individual.  The  one  thing  that 
it  cannot  do  is  to  prevent  its  own  repeal. 

To  what  extent  parliament  actually  and  habitually  ex- 
ercises this  vast  power — what  can  be  done  without  an  act  of 
parliament,  for  what  purposes  an  act  is  necessary — these  are 
questions  which  can  only  be  fully  answered  by  stating  the 
whole  law  of  England.  For  instance,  can  a  company  lay  a 
tramway  through  the  streets  of  Cambridge  without  obtaining 
an  act  of  parliament,  and  if  so,  can  it  use  steam  engines  to 
draw  its  carriages  ?  To  answer  such  questions,  one  must  look 
to  the  statute  book  and  see  what  parliament  has  said  about 
tramways.  Generalizations,  we  shall  find,  are  dangerous 
things ;  we  cannot  describe  in  wide  terms  the  sort  of  acts 
which  parliament  passes ;  we  must  read,  and  read  patiently, 
the  acts  that  it  has  passed. 

B.     The  '  Crown '  and  the  '  Government* 

We  know  however  as  a  matter  of  fact  that  a  great  deal 
of  the  utmost  importance  is  done  towards  governing  the 
kingdom  that  is  not  done  by  parliament ;  indeed  in  common 
talk  we  constantly  make  a  contrast  between  parliament  on 
the  one  hand,  and  what  we  call  the  government  on  the  other. 
What  then  is  this  government  ?  The  answer  to  this  question, 
if  it  is  to  be  true,  must  be  both  long  and  difficult  The  reason 
is  this.  During  the  last  two  centuries  there  has  grown  up  an 
organization  which  is  not  a  legal  organization.  Of  course,  I 
do  not  mean  that  it  is  an  illegal  organization ;  rather  I  should 
preter  to  say  that  it  is  an^extra-legal^  organization  ;  the  law 
does  not  condemn  it,  but  it  does  not  recognize  it — knows 
nothing  about  it.  I  mean  the  organization  to  which  we  point 
when  we  use  such  terms  as  '  the  Cabinet/  '  the  Ministry/  '  the 
Government/  '  the  Prime  Minister/  '  Mr  Gladstone's  second 

1  Duke  of  Connaught's  Leave  Act,  1887,  50  Viet.  c.  10. 

25—2 


388  Constitutional  History  PERIOD 

Ministry,' '  Lord  Salisbury's  administration/  This  certainly  is 
a  most  curious  state  of  things,  that  the  law  should  not  recognize 
what  we  are  apt  to  consider  an  organ  of  the  state  second 
only  in  importance  to  the  parliament  The  only  explanation 
that  can  be  given  is  a  historical  explanation.  We  must  go 
back  to  William  Ill's  time. 

We  may  start  with  this.  William  III  as  king  of  England 
had  very  great  powers.  The  revolutionary  settlement,  in  par- 
ticular the  Bill  of  Rights,  set  certain  limits  to  those  powers. 
The  king  was  to  be  distinctly  below  statute ;  he  was  to  have 
no  power  to  suspend  statutes  or  to  dispense  with  statutes  ; 
Jie  could  not  by  his  proclamations  create  any  new  offence ;  he 
could  not  keep  a  standing  army  in  the  realm  in  time  of  peace 
without  consent  of  parliament ;  parliament  had  begun  to  ap- 
propriate supplies  ;  the  military  tenures  were  gone ;  he  had 
no  powers  of  purveyance  and  preemption  ;  he  could  not  try 
men  by  martial  law ;  the  judges  were  no  longer  to  hold  office 
during  his  good  pleasure ;  the  courts  of  politicians  whereby 
the  Tudors  and  two  first  Stuarts  had  enforced  their  will  were 
gone ;  there  was  no  Star  Chamber,  no  High  Commission. 
Still  the  king's  legal  powers  were  great :  it  was  a  goodly 
heritage  that  was  settled  on  King  William.  Indeed,  as  we 
have  seen,  there  was  a  plausible  case  for  holding  that  the 
Revolution  was  a  restoration,  a  restoration  of  the  ancient  con- 
stitution as  it  stood  in  the  days  of  the  Lancastrian  kings.  All 
the  old  prerogatives  existed  save  in  so  far  as  they  had  been 
expressly  abolished  by  statute,  and  they  were  wide,  and  it 
was  intended  that  William  should  exercise  them.  It  was  no 
honorary  president  of  a  republic  that  the  nation  wanted,  but 
a  real  working,  governing  king — a  king  with  a  policy — and 
such  a  king  the  nation  got. 

Then  the  king  has  a  council,  a  privy  council;  from  a 
remote  time  this  has  been  so ;  we  can  trace  back  the  history 
of  this  council  at  least  as  far  as  the  beginning  of  Henry  Ill's 
reign.  It  has  already  four  or  five  centuries  of  definite  history 
and  is  very  well  known  to  the  law.  Before  this  I  have  tried 
to  point  out,  however,  that  the  constitution  and  the  functions 
of  the  council  have  always  depended  to  a  great  degree  on  the 
will  of  the  king.  The  councillors  are  councillors  only  during 


V  The  Privy  Council  389 

the  king's  pleasure.  Only  during  minorities  or  during  brief 
revolutionary  periods  has  parliament  determined  who  shall  be 
councillors.  And  again  no  law  compels  the  king  to  take  or 
even  to  ask  the  advice  of  his  councillors.  Great  as  are  the 
powers  that  the  council  exercises  under  the  Tudors  and  the 
Stuarts  they  are  in  law,  at  least  generally,  the  king's  powers, 
the  royal  prerogatives — powers  which  the  king  might  lawfully 
exercise  himself  were  he  capable  of  discharging  personally 
the  vast  business  of  government  A  privy  councillor  as  such, 
though  the  law  knows  him,  has  hardly  any  legal  powers. 

We  notice  also  that  the  act  which  abolished  the  Star 
Chamber  weakened  the  council ;  not  merely  did  it  deprive 
the  council  of  almost  all  its  judicial  powers,  but  by  so  doing 
it  rendered  regular  meetings  of  the  council  less  necessary 
to  the  king.  Charles  II  has  a  council  whom  it  is  needless  to 
keep  together  in  permanent  session ;  there  is  now  no  judicial 
work  for  it  to  do ;  while  as  to  the  work  of  advising  the  king 
upon  the  exercise  of  his  prerogatives,  no  law  compels  the 
king  to  seek  the  advice  of  all  his  councillors1.  As  a  matter 
of  fact  Charles  does  not  seek  their  advice  on  all  occasions: 
he  has  business  on  hand  which  can  be  trusted  to  very  few, 
and  he  trusts  very  few.  Something  like  an  inner  circle  of 
advisers  is  formed  consisting  of  a  few  privy  councillors  who 
hold  some  of  the  highest  offices  in  the  state.  Men  speak 
of  it  as  the  Cabal ;  it  so  happens  that  the  initial  letters  of 
the  names  of  its  members  make  this  word :  Clifford,  Ashley, 
Buckingham,  Arlington  and  Lauderdale.  The  privy  council 
is  at  this  time  a  large  body,  consisting  of  some  fifty  members — 
too  large  a  body  for  united  action.  Sir  William  Temple  evolved 
a  plan  for  reforming  the  council  and  restoring  it  to  the  position 
that  it  had  formerly  held,  that  is  to  say,  the  position  of  a  body 
whom  the  king  does  really  consult ;  but  the  plan  broke  down. 
Under  William  it  became  obvious  that  there  was  a  circle  of  real 
councillors  within  the  wider  circle  of  nominal  councillors,  and 
this  inner  circle  gradually  acquired  the  name  of  the  Cabinet 
Council — the  council  held  in  the  king's  own  cabinet  This 
was  looked  on  with  considerable  suspicion  by  the  parliamen- 

1  See   E.   I.  Carlyle,  "  Committees  of  Council  under  the  Earlier  Stuarts," 
English  Historical  Review ^  Oct.  1906,  pp.  673—86. 


390  Constitutional  History  PERIOD 

tarians  of  the  time,  and  one  more  attempt  was  made  to  restore 
the  privy  council  to  its  lost  position.  When  in  1700  it  be- 
came necessary  to  settle  the  crown  on  the  House  of  Hanover, 
it  was  enacted  by  the  Act  of  Settlement,  that  so  soon  as  that 
house  should  succeed  to  the  throne  '  all  matters  and  things 
relating  to  the  well-governing  of  this  kingdom  which  are 
properly  cognizable  in  the  privy  council  by  the  laws  and 
customs  of  this  realm  shall  be  transacted  there,  and  all 
resolutions  taken  thereupon  shall  be  signed  by  such  of  the 
privy  council  as  shall  advise  and  consent  to  the  same/  It 
was  feared  that  a  Hanoverian  prince  would  be  in  the  hands 
of  foreign  favourites,  and  it  was  desired  that  everyone  who 
gave  the  king  counsel  should  do  so  under  his  hand,  so  that 
his  responsibility  for  the  advice  might  be  brought  home  to 
him.  What  would  have  been  the  effect  of  this  clause  had 
it  ever  taken  effect,  it  is  hard  to  say ;  for  it  seems  to  say 
no  more  than  that  things  which  by  law  ought  to  come  before 
the  council  ought  to  come  before  the  council.  My  impression 
is  that  whatever  ancient  usage  may  have  required,  law  did 
not  require  the  king  to  consult  his  privy  council  about  the 
exercise  of  his  prerogatives.  And  this  became  apparent  after- 
wards. However  the  clause  in  question  never  came  into  force. 
It  was  repealed  in  1705  before  the  House  of  Hanover  came 
to  the  throne.  That  it  would  not  work  had,  I  suppose, 
become  apparent  During  Anne's  reign  men  became  more 
and  more  familiarized  with  the  existence  of  a  cabinet,  and 
the  abandonment  of  the  attempt  to  exclude  placemen  from 
the  House  of  Commons  made  possible  our  modern  system 
of  government. 

A  great  deal  however  remained  to  be  done  before  that 
system  would  assume  the  shape  which  is  familiar  to  us ;  but 
before  we  trace  the  process  any  further  we  must  turn  back  to 
consider  the  position  of  those  whom  I  will  call  the  high  officers 
of  state.  All  along  there  have  been  such  officers.  It  would, 
I  think,  be  interesting  could  we  take  the  history  of  each 
office:  for  this,  of  course,  we  have  not  time;  still  a  few 
things  should  be  remembered.  In  very  ancient  times  the 
chief  officers  of  the  king  are  the  officers  of  his  household :  his 
steward,  his  butler,  his  chamberlain,  his  marshal  or  the  like* 


V  The  Great  Offices  of  State  391 

Their  activity  spreads  outwards  from  the  household  over  the 
kingdom,  and  the  greatest  men  of  the  kingdom  are  proud  to 
hold  offices  which  in  their  origin  we  may  call  menial.  In 
the  German  Empire  the  Count  Palatine  of  the  Rhine  was 
steward,  the  Duke  of  Saxony  was  marshal,  the  King  of 
Bohemia  cup-bearer,  the  Margrave  of  Brandenburg  chamber- 
lain. Soon  after  the  Norman  Conquest  we  see  similar  high 
officers  in  England,  and  their  offices  are  hereditary.  The 
high  stewardship  is  hereditary  in  the  House  of  Leicester,  the 
office  of  constable  in  the  descendants  of  Miles  of  Hereford, 
and  that  of  chamberlain  in  the  family  of  Vere  and  the  butler- 
ship  in  that  of  Albini1.  But  in  England  owing  to  the  strength 
of  the  Norman  kingship,  we  may  state  as  a  general  rule  that 
an  office  which  becomes  hereditary  becomes  politically  un- 
important :  it  becomes  an  office  of  show  and  ceremony.  Two 
of  the  most  ancient  offices  still  exist :  the  Earl  of  Norfolk  is 
Marshal  of  England,  the  office  of  Lord  Great  Chamberlain 
is  held  jointly  by  Lady  Willoughby  d'Eresby  and  Lord 
Carrington.  The  offices  of  Lord  High  Steward  and  Lord 
High  Constable  fell  in  to  the  king  on  the  accession  of  the 
House  of  Lancaster.  Since  that  time  these  offices  have  not 
been  granted  out  as  hereditary  offices.  They  are,  I  believe, 
granted  for  the  purpose  of  coronations  and  similar  pageants, 
and  when  a  peer  is  to  be  tried  by  his  peers  a  high  steward 
must  be  appointed  for  the  occasion — a  fact  that  may  remind 
us  that  the  king's  steward  would  very  naturally  have  been 
the  president  of  the  king's  court  just  as  the  lord's  steward 
presided  in  the  court  of  the  manor.  These  great  offices  of 
the  first  rank,  however,  have  long  been  so  purely  honorary 
that  we  find  a  reduplication  of  offices ;  even  the  household 
work  which  would  naturally  be  done  by  these  officers  is  done 
by  another  set  of  officers.  Thus  besides  the  hereditary  Lord 
Great  Chamberlain  who  does  nothing  and  is  paid  nothing, 
there  is  a  Lord  High  Chamberlain,  who  has  duties  in  the 
king's  household  and  is  paid  a  salary.  Beside  the  hereditary 
Earl-Marshal,  there  is  a  non-hereditary  Master  of  the  Horse. 
So  again  there  is  a  Lord  Steward  of  the  Household  whose 
office  is  not  hereditary,  and  who  receives  a  salary. 

1  Stubbs'  Constitutional  History,  vol.  I,  §  119. 


392  Constitutional  History  PERIOD 

But  it  is  not  these  officers  of  the  oldest  and  highest  rank 
who  acquire  governmental  functions.  Another  group  of  officials 
collects  round  the  Norman  king,  and  their  offices  are  not 
hereditary.  Foremost  among  them  is  the  justiciar,  capitalis 
jttstitiarizis  Angliae.  His  office  comes  to  an  end  before  the 
death  of  Henry  III,  and  its  extinction  leaves  as  the  two 
chief  officers  of  the  realm  the  Lord  Chancellor  and  the  Lord 
High  Treasurer.  Throughout  the  later  Middle  Ages,  the 
Chancellor  and  Treasurer  are  the  king's  right-hand  men. 
Other  offices  grow  up.  Under  the  Tudors  a  Lord  President  of 
the  Council  is  sometimes  appointed,  and  under  the  Stuarts  this 
office  becomes  more  permanent.  Then,  as  we  have  already 
seen,  confidential  clerks  begin  to  intervene  between  the  king 
and  his  chancellor.  There  is  the  Lord  Keeper  of  the  Privy 
Seal,  who  already  in  Henry  VIITs  reign  ranks  next  to 
the  Chancellor,  Treasurer,  and  Lord  President.  Then  the 
king's  secretary  intervenes  between  the  king  and  his  privy 
seal,  and  in  1601  he  becomes  'our  principal  secretary  of 
estate/  The  growth  of  the  Court  of  Chancery  has  an  im- 
portant influence  on  the  distribution  of  offices ;  the  Chancellor 
with  his  increasing  burden  of  judicial  duties  cannot  be  always 
at  the  king's  side.  Sometimes  there  are  two  Secretaries  of 
State  (Henry  VIII  appoints  a  second  in  1539),  sometimes 
even  three ;  under  Charles  I  it  becomes  the  regular  rule  to 
have  two,  until  1708,  when,  on  the  occasion  of  the  union  with 
Scotland,  the  number  was  increased  to  three.  There  are  now, 
as  we  shall  see  hereafter,  five.  On  a  somewhat  lower  level 
stood  the  Chancellor  of  the  Exchequer,  also  the  Lord  High 
Admiral. 

Occasionally  we  find  that  some  of  these  offices  are  put 
into  commission  ;  thus  instead  of  a  Lord  Chancellor,  the 
great  seal  is  entrusted  to  commissioners.  At  the  beginning 
of  George  I's  reign  the  office  of  Lord  High  Treasurer  was 
put  into  commission,  and  it  has  remained  in  commission  ever 
since.  It  is  executed  by  certain  persons  who  are  collectively 
Lords  Commissioners  for  executing  the  office  of  the  Lord  High 
Treasurer,  or  as  they  are  generally  called  the  Lords  of  the 
Treasury ;  the  one  who  is  first  named  in  the  patent  of  ap- 
pointment is  the  First  Lord  of  the  Treasury.  So  also  on  the 


v  Doctrine  of  the  Seals  393 

accession  of  William  III,  the  office  of  Lord  High  Admiral 
was  put  in  commission  ;  it  was  revived  for  a  short  while  in 
Anne's  reign.  Her  husband,  George  of  Denmark,  was  Lord 
High  Admiral.  It  was  revived  again  for  a  few  months  in  1827, 
when  the  Duke  of  Clarence  became  Lord  High  Admiral.  But 
except  during  these  intervals  it  has  been  in  commission,  exe- 
cuted by  Lords  Commissioners  for  executing  the  office  of  Lord 
High  Admiral,  that  is  to  say,  by  a  First  Lord  of  the  Admiralty 
and  several  other  lords.  Now  these  servants  of  the  king,  more 
especially  the  older  of  them,  were  known  to  the  law,  to  the 
common  law.  They  had  legal  powers.  The  king  could  not 
have  got  on  without  them.  For  instance,  the  Chancellor  had 
become  a  judge ;  with  the  assistance  of  a  Master  of  the  Rolls 
and  certain  Masters  in  Chancery  he  had  to  discharge  the  ever 
increasing  business  of  a  great  court.  Take  another  and  more 
important  instance:  in  Elizabeth's  reign  the  judges  had  to 
consider  whether  a  certain  sum  of  money  had  been  lawfully 
issued  out  of  the  king's  exchequer;  they  laid  down  two  pro- 
positions: (i)  that  no  money  could  be  lawfully  issued  without 
the  king's  own  warrant ;  (2)  that  such  a  warrant  would  not  be 
sufficient,  it  must  be  sealed  with  the  great  seal  or  with  the 
privy  seal ;  the  king's  command  by  word  of  mouth  is  not 
enough,  the  king's  command  signed  by  his  own  hand  and 
countersigned  by  his  secretary  is  not  enough — the  great,  or 
at  least  the  privy,  seal  must  be  attached.  And  so  in  other 
cases,  the  courts  would  take  no  notice  of  the  king's  command 
unless  formally  scaled.  A  mass  of  laws  grew  up  about  this 
matter ;  for  some  purposes  the  great  seal  was  indispensable, 
for  others  the  privy  seal  would  do,  for  others  again  the  signet 
kept  by  the  secretary :  in  a  few  cases  the  king's  oral  command 
would  be  enough — thus  undoubtedly  he  could  dissolve  parlia- 
ment by  word  of  mouth.  This  doctrine  of  the  seals  practically 
compelled  the  king  to  have  ministers  entrusted  with  the  seals 
who  could  be  called  in  question  for  the  use  that  they  made  of 
them.  We  must  not  think,  even  now-a-days,  of  '  the  seals 
of  office'  as  mere  ceremonial  symbols  like  the  crown  and  the 
sceptre ;  they  are  real  instruments  of  government  Without 
a  great  seal,  England  could  not  be  governed.  Every  corpora- 
tion, this  University  for  instance,  has  as  perhaps  you  know  a 


394  Constitutional  History  PERIOD 

common  seal,  and  a  great  many  things  can  only  be  done 
by  the  use  of  the  common  seal.  It  is  somewhat  the  same 
with  the  seals  of  office:  courts  of  law  take  notice  of  these 
seals,  and  insist  that  they  must  be  affixed. 

We  return  now  to  the  growth  of  the  Cabinet.  The  inner 
circle  of  councillors  which  grows  up  within  the  Privy  Council 
consists  of  a  few  holders  of  these  high  offices.  With  their  aid, 
the  king  can  exercise  all  the  powers  with  which  the  law  entrusts 
him.  They  keep  the  various  seals  of  office,  and  if  they  will  affix 
them,  then  the  king's  business  can  be  done.  Certain  things, 
it  is  true,  must  according  to  settled  usage  be  done  by  Order 
in  Council,  that  is,  by  an  order  made  by  the  king  at  a  meeting 
of  the  Privy  Council.  Thus  from  a  remote  time  it  has  been 
the  practice  that  the  summoning  of  a  parliament  shall  be 
determined  on  at  a  council.  The  writs  of  summons  recite 
that  by  the  advice  of  his  Privy  Council,  the  king  has  deter- 
mined to  call  a  parliament  Settled  usage,  I  say,  requires 
this — it  might  be  too  much  to  say  that  it  is  required  by  law — 
but  at  any  rate,  law  does  not  require  that  all  the  members 
of  the  council  shall  be  summoned  to  a  meeting.  A  meeting 
of  the  king  with  just  a  few  of  its  members  selected  by  him 
is  a  meeting  of  the  Privy  Council,  and  a  resolution  passed  at 
such  a  meeting  and  published  is  an  Order  in  Council. 

We  now  see  how  it  is  legally  possible  for  the  work  of 
government  to  fall  into  the  hands  of  a  small  number  of  the 
council — those  members  who  hold  the  high  offices  of  state 
and  who  have  control  over  the  seals  of  office.  If  the  king 
has  with  him  the  Chancellor,  the  Treasurer  or  First  Lord 
of  the  Treasury,  the  Lord  Privy  Seal,  and  the  Secretaries  of 
State,  he  can  get  his  work  done  without  consulting  the  mass 
of  privy  councillors.  If,  for  any  purpose,  an  Order  in  Council 
is  required,  a  meeting  of  the  king  with  just  these  few  intimate 
advisers  will  be  a  good  enough  meeting  of  the  Privy  Council 
at  which  Orders  in  Council  can  be  made.  So  much  as  to  the 
legal  possibility  of  cabinet  government. 

Still  cabinet  government,  in  our  modern  sense,  is  but 
slowly  perfected ;  our  idea  of  it  involves  several  principles 
which  were  by  no  means  acknowledged  principles  in  the  days 
of  William  III,  which  hardly  obtained  complete  recognition 


V  Development  of  the  Cabinet          395 

until  late  in  the  last  century.  In  the  first  place  there  has 
been  a  further  change  in  the  mode  of  conducting  business. 
William  and  Anne  were  habitually  present  at  the  meetings 
of  the  Cabinet  Councils,  which  also,  as  we  have  just  seen,  were 
legally  meetings  of  the  Privy  Council.  But  then  there  comes 
a  change.  George  I  ceased  to  attend  the  meetings  of  the 
Cabinet.  He  and  George  II  could  not  speak  English,  and 
felt  little  concern  as  to  the  internal  policy  of  England  ;  they 
were  more  concerned  for  Hanover.  The  Cabinet  then  begins 
to  meet  without  the  king's  presence.  The  results  of  its  dis- 
cussions are,  when  this  is  necessary,  conveyed  to  the  king 
by  one  of  the  ministers.  If  an  Order  in  Council  is  wanted, 
then  a  few  ministers  are  got  together,  and  what  is  formally 
and  legally  a  meeting  of  the  Privy  Council  is  held  under 
the  king's  presidency.  But  the  business  of  such  a  meeting 
becomes  merely  formal;  it  is  held  in  order  that  it  may  register 
a  foregone  conclusion,  a  conclusion  debated  in  the  Cabinet 
and  communicated  to  the  king.  George  III,  though  he  had 
a  will  of  his  own  and  strong  views  of  policy,  did  not  inter- 
fere with  this  arrangement.  At  the  deliberative  meetings  of 
the  Cabinet  Council  the  king  was  not  present ;  the  formal 
meetings  of  the  Privy  Council  at  which  he  was  present  were 
not  meetings  for  debate  or  discussion,  but  merely  meetings  at 
which  the  king  would  give  his  formal  assent  and  authority 
to  matters  which  had  been  already  before  the  Cabinet  and 
about  which  the  king's  pleasure  had  been  already  taken. 

Then  again  we  must  notice  the  growing  solidarity  of  the 
Cabinet.  This  solidarity  (I  can  find  no  better  word  for  it) 
we  may  analyze  into  three  principles :  (i)  political  unanimity, 
(2)  common  responsibility  to  parliament,  (3)  submission  to  a 
common  head. 

(i)  Only  by  degrees  does  it  come  to  be  considered  that 
the  king  ought  to  choose  all  his  ministers  from  one  of  the  two 
great  parties.  The  ministries  of  Anne's  reign  are  partly  Whig, 
partly  Tory.  The  Whig  administration  of  Sir  Robert  Wai- 
pole  sets  the  precedent  for  party  ministries  and  thenceforward, 
though  there  are  occasional  aberrations,  the  bonds  of  party  are 
drawn  tighter.  Of  course  there  may  be  coalition  ministries, 
but  then  a  coalition  ministry  has  a  policy  of  its  own,  though 
it  does  not  happen  to  be  the  policy  of  either  of  the  two  great 


396  Constitutional  History  PERIOD 

permanent  parties,  the  existence  of  which  we  have  come  to 
regard  as  natural. 

(2)  Connected  with  this  is  the  principle  of  common  re- 
sponsibility to  parliament,  by  which  is  meant  that  the  ministry, 
if  defeated,  will  resign   in  a  body.     This  principle  was  not 
fully  admitted  until  the  last  century  was  far  advanced.     We 
may  find   one  minister  resigning  because  he  cannot  get  on 
with  parliament,  while  his  colleagues  retain  office;  quarrelling 
with  him  is  not  quarrelling  with  them,  nor  are  they  in  honour 
bound  to  support  his  cause.     We  must  remember  in  this  con- 
text that  the  presence  of  ministers  in  the  House  of  Commons 
was  long  disliked  by  the  House.    So  far  from  wishing  to  have 
ministers  there  to  answer  for  their  doings,  the  House  struggled 
to  exclude  them.   But  the  ideal  changed  ;  the  House  wished  to 
have  the  ministers  before  it — became  accustomed  to  have  them 
before  it — to  support  them,  to  attack  them,  to  regard  them  as 
a  whole,  to  regard  them  not  merely  as  the  representatives  of 
the  king,  but  also  as  the  representatives  of  a  party,  so  that  a 
defeat  of  a  minister  would  be  a  defeat  of  a  party. 

(3)  Such  organization  of  a  ministry  almost  of  necessity 
involves  some  degree  of  subordination   and   very  slowly  it 
becomes   acknowledged,  not  by  law,  but  by  parliamentary 
practice  that  there  is  among  the  ministers  a  Prime  Minister, 
one  who  has  a  certain  amount  of  authority  over  his  fellows, 
one  who,  to  a  certain  extent,  stands  between  them  and  the 
king.     But  this  is  the  gradual  outcome  of  practice.     Walpole, 
for  example,  though,  as  a  matter  of  fact,  he  had  great  au- 
thority over   his   colleagues,  protested    against  being  called 
Prime    Minister,  and    to   this    day  the    law  knows   no  such 
person1.   Lord  Salisbury,  we  say,  is   Foreign   Secretary  and 
Prime    Minister;    to   the   law   he   is    merely   one   of    H.M. 
principal   Secretaries  of  State,  and  whatever  power  he  may 
have  over  his  colleagues  is  not  legal  power — he  has  no  more 
legal  power  to  give  them  orders  than  they  have  to  give  him 
orders  ;  he  has  no  more  power  to  dismiss  them  than  they 
have  to  dismiss  him.     Still,  before  the  end  of  the  last  century 
constitutional  practice  required  that  there  should  be  a  Prime 

1  The  Prime  Minister  was  granted  precedence  next  after  the  Archbishop  of 
Canterbury  by  royal  warrant  dated  Dec.  4,  1905,  and  appearing  in  the  London 
Gazette  of  Dec.  5.  The  warrant  does  not  constitute  an  office,  but  grants  precedence 
to  the  person  holding  a  particular  position. 


v  Power  of  the  Crown  397 

Minister,  and  in  the  present  century  his  ascendency  has  become 
still  more  marked 

Then  again,  we  have  to  notice  the  growth  of  the  principles, 
which  of  course  are  no  principles  of  law :  (i)  that  the  king  is 
bound  (at  least  in  all  grave  matters)  to  act  on  the  advice  of 
his  ministers,  (2)  that  he  must  choose  his  ministers,  or  rather 
his  first  minister,  in  accordance  with  the  will  of  the  House 
of  Commons.  We  cannot  trace  step  by  step  the  process 
whereby  the  king's  personal  will  and  pleasure  has  come  to 
count  for  very  little  in  our  government  The  reigns  of  the 
two  Hanoverians,  George  I  and  George  II,  had  much  to  do 
with  it.  George  Ill's  attempt  to  govern  as  well  as  to  reign 
was,  we  may  now  say,  a  retrograde  attempt ;  it  is  improbable 
that  we  shall  see  such  an  attempt  in  the  future.  The  process 
of  which  we  are  speaking  is  a  very  gradual  process,  and  it  is 
very  difficult  to  say  with  any  accuracy  how  far  it  has  gone. 
Few  indeed  are  the  people  who  really  know  how  much 
or  how  little  the  queen's  own  wishes  affect  the  course  of 
government.  I  strongly  suspect  that  her  influence  is  rather 
underrated  than  overrated  by  the  popular  mind.  Persons  in 
general  do  not  know  how  vast  a  mass  of  business  is  brought 
before  her,  how  many  papers  she  has  to  sign  with  her  own 
hand.  Still  there  is  no  doubt  that  it  is  expected  of  her 
that  in  all  grave  matters  she  should  accept  the  advice  of 
her  ministers.  It  much  rather  concerns  us  as  legal  students 
to  see  how  this  non-legal  rule  is  intimately  connected  with 
legal  arrangements.  Without  parliament's  consent,  given  year 
by  year,  no  standing  army  can  be  kept  on  foot.  Without  the 
grant  of  supplies  the  king  will  have  no  money,  or  at  any  rate 
not  enough  money  to  enable  him  to  carry  on  the  work  of 
government.  Thus  parliament,  and  in  particular  the  House  of 
Commons,  has  a  most  efficient  check  upon  the  king's  action. 
An  attempt  to  keep  in  office  ministers  who  could  not  com- 
mand a  majority  in  the  House  of  Commons  would  speedily 
fail :  the  House  could  refuse  to  renew  the  Army  Act,  or 
refuse  to  grant  supplies.  An  attempt  to  overrule  ministers 
who  commanded  such  a  majority  might  be  met  in  a  similar 
fashion.  The  most  important  choice  that  a  king  can  have 
to  make  is  now  the  choice  of  a  Prime  Minister;  the  other 


398  Constitutional  History  PERIOD 

ministers  are  practically  chosen  for  him  by  the  Prime  Minister, 
and  even  here  he  seldom  has  much  choice.  It  is  even  laid 
down  as  constitutional  practice  that  when  a  ministry  resigns, 
the  king  ought  to  offer  the  premiership  to  the  person  named 
by  the  outgoing  minister. 

We  here  find  ourselves  among  rules  which  most  clearly 
are  not  rules  of  law  ;  we  may  call  them  rules  of  constitutional 
morality,  or  the  customs  or  the  conventions  of  the  constitu- 
tion. We  find  them  of  every  degree  of  stringency  and  of 
definiteness:  on  the  one  hand  there  are  rules  so  stringent 
and  so  definite  that  they  practically  operate  as  rules  of  law ; 
on  the  other  hand  there  are  rules  which  have  hardly  yet 
obtained  general  recognition,  and  the  very  existence  of  which 
is  disputable.  For  instance,  we  may  now  take  it  as  a  well- 
settled  understanding  that  when  a  bill  has  passed  both  Houses 
of  parliament,  the  king  will  not  withhold  his  assent.  The 
last  occasion  on  which  such  assent  was  withheld  occurred  so 
long  ago  as  Queen  Anne's  reign,  when  she  rejected  a  Scottish 
Militia  Bill.  We  now  expect  the  royal  assent  as  though  it  were 
a  mere  matter  of  course,  and  (to  say  the  least)  the.  circum- 
stances would  have  to  be  of  a  very  extraordinary  character 
which  would  allow  the  king  to  withhold  his  royal  assent 
without  a  breach  of  a  well-settled  constitutional  under- 
standing. On  the  other  hand,  we  seem  to  see  a  rule  growing 
up  to  the  effect  that  the  House  of  Lords  ought  not  per- 
sistently to  resist  the  will  of  the  House  of  Commons  about 
matters  of  first-rate  importance.  At  present  this  rule,  if 
rule  we  may  call  it,  is  of  a  very  vague  character ;  we  have 
to  use  in  expressing  it  such  elastic  terms  as  '  persistently'  and 
'  matters  of  first-rate  importance/  and  our  view  as  to  the 
existence  of  the  rule  is  likely  to  be  affected  by  our  political 
opinions  :  if  we  be  Tories  we  shall  perhaps  deny  it,  if  Radicals 
we  shall  affirm  it :  if  we  try  to  be  impartial  we  shall  have  to 
say  something  very  loose:  as,  for  instance,  that  this  rule  has 
been  observed  more  or  less  for  some  time  past  and  seems 
to  be  growing  stricter.  An  instance  of  a  more  definite  rule, 
which  yet  is  no  rule  of  law,  is  that  the  lords  are  not  to  make 
changes  in  a  money  bill,  but  must  accept  it  as  a  whole  or 
reject  it  as  a  whole.  As  an  illustration  of  a  very  debateable 


V    '      Personal  Will  and  Legal  Powers      399 

matter,  we  may  take  the  power  of  the  House  of  Commons 
to  make  use  of  this  rule  as  to  money  bills  for  the  purpose 
of  forcing  other  measures  through  the  Upper  House.  Is  it 
unconstitutional  for  the  commons  to,  as  the  phrase  goes,  tack 
a  bill  granting  money  to  the  crown  to  another  bill  to  which 
the  lords  object,  and  thus  to  put  the  lords  in  the  dilemma 
of  having  either  to  pass  the  obnoxious  bill  or  to  leave  the 
crown  without  money  ?  There  are  a  few  instances  of  this 
having  been  done,  and  more  of  its  having  been  threat- 
ened ;  I  do  not  think  that  it  has  actually  been  done  since 
William  Ill's  reign.  The  lords  contend  that  such  a  pro- 
ceeding is  unconstitutional — the  commons  might  take  a 
different  view.  There  is  no  impartial  tribunal  before  which 
such  questions  can  be  brought,  no  tribunal  which  even  pre- 
tends to  be  impartial.  In  each  particular  case  there  is  likely 
to  be  a  brisk  party  conflict,  but  slowly  understandings  are 
established.  And  thus  it  is  as  to  the  personal  wishes  and 
opinions  of  the  king :  they  have  come  to  count  for  little,  but 
for  how  much  few  of  us  can  say. 

But  we  must  not  confuse  the  truth  that  the  king's  personal 
will  has  come  to  count  for  less  and  less  with  the  falsehood 
(for  falsehood  it  would  be)  that  his  legal  powers  have  been 
diminishing.  On  the  contrary,  of  late  years  they  have 
enormously  grown. 

The  principle  being  established  that  the  king  must  govern 
by  the  advice  of  ministers  who  are  approved  by  the  House 
of  Commons,  parliament  has  entrusted  the  king  with  vast 
powers — statutory  powers.  Many  governmental  acts,  which 
in  the  last  century  would  have  required  the  passing  of  an 
act  of  parliament,  are  now  performed  by  exercise  of  sta- 
tutory powers  conferred  on  the  king.  Acts  which  give  these 
powers  often  require  that  they  shall  be  exercised  by  order  in 
council.  Thus  in  additiop  to  his  prerogative  or  common  law 
powers  the  king  now  has  statutory  powers.  All  this,  coupled 
with  the  delegation  of  other  powers  to  this  minister  and  that, 
is  the  result  of  a  new  movement  which  began  about  1830. 

These  brief  remarks  about  history  are  intended  as  an 
introduction  to  an  examination  of  the  present  state  of 
affairs.  We  have  to  enquire  how  what  we  may  loosely  call 


4OO  Constitutional  History  PERIOD 

the  government  is  organized,  and  we  must  carefully  distin- 
guish between  rules  of  law  and  rules  which,  however  binding 
they  may  be  considered,  are  not  rules  of  law  and  could  not 
be  enforced  by  any  legal  proceedings. 

We  have  to  begin  with  describing  the  present  constitution 
of  the  Privy  Council,  the  Cabinet,  the  Ministry. 

(1)  The  Queen  has  a  Privy  Council  and  in  some  sort  is 
obliged  by  law  to  have  one,  not  indeed  quite  directly,  but  the 
legal  pressure  amounts  to  necessity,  for  many  things  which 
must  be  done  (if  government  is  to  go  on  at  all)  can  only  be 
done  by  the  Queen  in  Council.     This  is  the  result  (for  the 
most  part)  of  statutes  passed  within  the  last  fifty  years,  a 
mass   of  statute   law   growing   rapidly  year  by  year.     One 
statute  we  may  specially  note : 

The  Act  of  Union  with  Scotland  provides  that  there  shall 
be  but  one  Privy  Council  for  Great  Britain. 

(2)  The  legal  composition  of  the  Council  is  as  follows. 
No  number  is  fixed;  no  legal  qiiomm  is  demanded;  the  Queen 
of  her  own  will  can  make  any  man  (not  an  alien)  a  privy 
councillor.     Summons  and  oath  make  the  privy  councillor — 
in  substance  he  swears  to  advise  the  king  to  the  best  of  his 
discretion.     From  the  form  of  oath,  which  is  very  ancient, 
little  is  to  be  learned.     The  privy  councillor  swears  to  keep 
the  king's  counsel  secret,  to  avoid  corruption,  to  do  all  that 
a  good  counsellor  should  do.     He  is  dismissible  at  pleasure, 
without  cause  assigned. 

(3)  In    actual  composition    the   body  consists   of  some 
two  hundred  and  fifty  members — about  half  peers  and  half 
commoners. 

It  contains  all  present  and  past  cabinet  ministers,  a  few 
members  of  the  royal  family,  two  Archbishops  and  the  Bishop 
of  London,  a  number  of  the  highest  judges  and  ex-judges, 
and  a  number  of  persons  selected  on  grounds  of  military, 
political,  scientific,  literary  and  even  philanthropical  services. 
Certain  offices  carry  with  them  a  constitutional  claim  to  a 
seat  in  the  privy  council :  a  cabinet  minister  is  always  called 
to  the  council  board,  also  the  lord  chief  justice,  the  lord 
justices  (a  relic  of  former  time),  the  Archbishops  and  the 
Bishop  of  London.  De facto  councillors  are  not  dismissed; 


V  The  Privy  Council  401 

indeed  it  probably  would  not  be  considered  constitutional  (i.e. 
it  would  raise  an  outcry)  to  dismiss  them  except  for  crime  or 
gross  immorality.  It  follows  from  the  composition  of  the 
body  that  if  the  Privy  Council  really  met,  it  would  do  no 
business,  for  it  would  comprise  members  of  both  political 
parties :  Salisbury,  Gladstone,  Hartington,  Morley,  Chamber- 
lain, Randolph  Churchill. 

(4)  The  queen  is  not  bound  by  law  nor  by  any  consti- 
tutional understanding  to  summon  all  her  councillors;  on  the 
contrary,  modern  constitutional  understanding  requires  of  her 
that  she  shall  summon  but  a  small  selection  of  them.    A  privy 
councillor  made  so  as  a  mere  honour — e.g.  an  ex-judge — goes 
to  the  council  board  once  to  take  the  oath,  and  he  never  goes 
again.     Perhaps  it  may  be  said  that  he  has  a  constitutional 
(it  can  hardly  be  a  legal)  right  to  be  heard,  if  he  has  advice 
to  give.     Perhaps  it  would  be  considered  that  the  queen  ought 
not  to  refuse  him  an  audience;  but  obviously,  if  this  right 
were  really  insisted  on,  our  constitution  would  soon  be  topsy- 
turvy :    as,  for  instance,  if,  while  the  present  ministry  remains 
in  power,  Gladstone  insisted  on  constantly  having  the  queen's 
ear.     Possibly  a  formal  meeting  of  the  whole  Privy  Council 
would    be    summoned    at   the    beginning   of    a   new   reign1. 
Again,  a  meeting  might  be  summoned  in  some  extraordinary 
national  emergency.     A  full  meeting  was  held  in  1839  when 
the  queen's  approaching  marriage  was  announced. 

(5)  But  a  meeting  of  the  Sovereign  with  any  of  the  Privy 
Council  (subject  to  such  understandings  as  may  exist  with 
regard  to  a  quorum,  the  presence  of  the  Clerk  of  the  Council, 
or  the  books  of  the  Council2)  has  enormous  power.     It  is  the 
constitutionally  correct  and  in  some  cases  the  legally  necessary 
mode  of  exercising  the  common  law  powers,  '  prerogatives ' 
of  the  crown.    It  is  the  statutory  means  of  exercising  many — 
most,  and  those  the  most  important — of  the  statutory  powers 
of  the  crown. 

1  At  the  accession  of  King  Edward  VII  a  full  meeting  was  summoned  at 
St  James  Palace  Jan.  23,  1901,  and  attended  by  four  Royal  Dukes,  two  Archbishops, 
the  Lord  Chancellor,  the  Lord  President  and  97  other  Lords  of  the  Council. 

a  An  accurate  record  is  kept  of  the  proceedings  of  the  Privy  Council,  though  it 
is  not  in  terms  described  as  'Minutes.'  I  owe  thib  'iifomiation  to  the  kindness  of 
Mr  Ahnenc  Huroy,  the  Clerk  of  the  Council. 

M.  26 


402  Constitutional  History  PERIOD 

(6)  It  is  legally  requisite  that  the  Sovereign  should  have 
certain  high  officers  of  state,  a  Lord  Treasurer,  for  instance,  or 
commissioners  for  executing  his  office,  a  Lord  Chancellor  or 
Lord  Keeper  of  the  great  seal  or  commissioners  entrusted  with 
the  great  seal,  at  least  one  Secretary  of  State.     It  is  legally 
requisite,  because  it  would  become  utterly  impossible  to  govern 
England  lawfully  without  such  officers,  impossible,  for  instance, 
to  get  a  penny  out  of  the  Bank  of  England  without  the  com- 
mission of  a  high  crime.     This  is  true  in  a  less  degree  of  the 
Board  of  Trade,  the  Local  Government  Board,  the  committee 
of  Council  for  Education  ;  grave  public  affairs  would  be  in  a 
mess  if  these  bodies  were  non-existent  for  a  month.     This  is 
the  result  of  modern  statutes. 

(7)  A  certain  number  of  these  high  officers  of  state  are 
said   to  constitute  'the  cabinet':  these,  together  with  other 
officers,  are  said  to  constitute  'the  ministry/     Neither  of  these 
terms  is  known  to  the  law.     No  official  document  constitutes 
the  cabinet.     Some  officers  are  always  (by  practice)  members 
of  the  cabinet,  for  instance,  all  Secretaries  of  State,  the  first 
Lord  of  the  Treasury,  the  Chancellor,  the  Chancellor  of  the 
Exchequer,  the  first   Lord  of  the  Admiralty.     As  to  other 
officers,    the    practice    varies :    the    Postmaster-General,   the 
President  of  the  Local  Government  Board,  the  President  of 
the  Board  of  Trade,  the  Lord  Privy  Seal,  the  Chancellor  of 
the  Duchy  of  Lancaster  are  generally  members  of  the  cabinet. 
In  practice  every  member  of  the  cabinet  holds  a  legal  office : 
most  members  hold  extremely  important  legal  offices ;  even 
when  it  is  wished  to  have  the  presence  of  some  one  who  is 
past  work,  he  is  given  an  office — though  one  to  which  few 
duties  are  annexed — the  Chancellorship  of  the  Duchy  or  the 
like. 

(8)  The  truth  that  the  cabinet  is  unknown  ,to  law  must 
not  be  converted  into  the  falsehood  that  it  is  a  meeting  of 
persons  who  have  no  legal  powers.     Each  cabinet  niinister 
is  a  privy  councillor,  each  is  a  high  officer,  each  has  usually 
large  legal  powers.    But  the  legal  powers  of  a  cabinet  meeting 
are  only  the  sum  of  the  legal  powers  of  its  members.     The 
cabinet  has  no  corporate  powers. 

(9)  The  cabinet  is  a  selection  out  of  a  larger  body  of 


V  Ministerial  Offices 

rs  of 
'ministers';  the  ( ministry*  consists  of  those  holders  of  oieen 

under  the  crown  who  according  to  constitutional  usage  vn*e 
expected  to  be  members  of  one  or  other  House  of  Parliament 
and  to  act  together.  Recall  the  law  as  to  the  qualification  for 
the  House  of  Commons.  Office  under  the  crown  either  does  or 
does  not  disqualify  from  a  seat  in  Parliament ;  the  law  must 
be  sought  in  a  variety  of  statutes  ;  but  the  general  result  is 
that  only  those  holders  of  civil  (as  distinct  from  military) 
offices  under  the  crown  can  sit  who  are  intended  and  expected 
to  act  together  and  to  form  a  coherent  body  in  parliament. 

There  seem  to  be  forty  or  fifty  such  offices.  A  ministry 
consists  of  forty  to  fifty  men,  of  whom  fifteen  to  seventeen 
form  the  cabinet1.  As  instances  of  ministerial  offices  which  are 
not  cabinet  offices  we  may  cite  the  law  officers  of  the  crown, 
the  Attorney-general  and  Solicitor-general  for  England  and 
for  Ireland,  the  Attorney-general  and  Solicitor-general  for 
Scotland,  the  junior  lords  of  the  Treasury,  the  junior  lords  of 
the  Admiralty,  the  first  Commissioner  of  Works  and  public 
buildings,  the  Paymaster-general,  the  two  Secretaries  to  the 
Treasury, the  political  secretaries  representing  the  Home  Office, 
Foreign  Office,  India  Office,  Colonial  Office,  War  Office,  the 
Board  of  Trade,  the  Local  Government  Board,  the  Secretary 
to  the  Admiralty.  The  general  idea  is  that  each  great  depart- 
ment of  State  shall  have  one  representative  in  each  House : 
thus  if  the  Secretary  of  State  for  Foreign  Affairs  be  in  the 
Lords,  the  political  Unclcr-Secretary  will  be  in  the  Commons. 

It  is  a  general  rule,  though  not  of  course  a  rule  of  law,  that 
all  ministers  should  be  in  one  House  or  the  other.  The  case 
of  the  Naval  Lords  appears  to  be  the  sole  exception. 

Further  there  are  some  understandings,  though  less  distinct, 
as  to  which  House  shall  contain  a  particular  minister.  The 
Chancellor  of  the  Exchequer  must  be  in  the  Commons ;  a  rule 
seems  to  be  growing  up  that  the  Home  Secretary  must  be 
there  likewise.  And  it  is  a  legal  rule  that  not  more  than 
four  under-secretaries  of  State  may  sit  in  the  Commons2. 

Again  it  is  a  general  rule  that  other  offices  in  the  civil 
service  are  to  be  permanent  and  not  political ;  but  this  is  a 

1  The  number  of  the  cabinet  in  1913  is  21,  the  number  of  the  ministry  59. 
*  21  and  22  Viet.  c.  106.     See  also  37  and  28  Viet.  c.  34. 

26 2 


406  Constitutional  History  PERIOD 

How  are  they  to  be  exercised  ?  By  the  queen  at  what  is 
legally  a  meeting  of  her  Privy  Council.  The  queen  holds  such 
meetings  from  time  to  time.  Summonses  are  sent  out  by  the 
Lord  President  of  the  Council  to  a  few  privy  councillors.  It 
is,  I  believe,  usual  to  get  six  members  to  attend,  just  a  few  of 
the  cabinet  ministers ;  sometimes  one  of  the  queen's  sons  ;  as 
already  so  often  said,  no  one  has  a  right  to  be  summoned1. 
The  business,  I  believe,  is  of  the  most  formal  kind,  the  orders 
have  been  prepared  by  the*  minister  whose  department  they 
concern,  if  of  importance  they  have  been  discussed  in  the 
cabinet;  their  nature  is  explained  to  the  queen,  who  says 
'approved';  there  is,  I  believe,  no  debate.  The  order  is  drawn 
up  and  signed  by  the  Clerk  of  the  Council,  a  permanent 
officer:  such  is  an  Order  in  Council. 

The  use  of  requiring  a  formal  meeting  of  this  sort  is,  I  take 
it,  that  to  any  Order  in  Council  several  members  of  the 
cabinet  must  almost  necessarily  be  committed,  if  not  legally, 
at  least  constitutionally.  When  power  is  given  (say)  to  a 
Secretary  of  State  to  issue  rules,  orders  and  regulations  as  to 
the  discipline  of  the  police,  and  he  exercises  this  power,  it 
might  be  difficult,  even  in  parliament,  to  hold  the  Chancellor 
of  the  Exchequer  in  any  sense  answerable  for  what  his 
colleague  had  done  if  he  chose  to  repudiate  the  act :  it 
would,  I  imagine,  be  much  more  difficult  for  any  cabinet- 
minister  to  deny  responsibility  for  an  Order  in  Council.  Here, 
however,  we  go  beyond  the  law. 

The  form  of  an  Order  in  Council  is  as  follows : 

October  4,  1887. 
At  the  court  at  Balmoral  the  15th  day  of  September,  1887. 

Present, 

The  Queen's  most  Excellent  Majesty  in  Council. 
Whereas  under  certain  statutes  the  Ecclesiastical   Com- 
missioners have  prepared  a  scheme  for  making  new  parishes. 

1  Mr  Almeric  Fitzroy,  the  Clerk  of  the  Council,  kindly  informs  me  that  so 
far  as  he  is  aware,  no  rule  has  been  laid  down  as  to  the  quorum  necessary  for 
Orders  in  Council ;  but  that  in  practice  the  rule  embodied  in  an  Order  of 
Feb.  20,  1677  has  been  followed.  It  requires  the  presence  of  three  of  the 
Lords  of  the  Council.  The  presence  of  the  Clerk  of  the  Council  is  necessary,  as  it 
is  his  attestation  which  affords  legal  proof  of  the  document. 


V  Delegated  Powers  407 

And  whereas  the  scheme  has  been  approved  by  H.M.  in 
Council.  Now  therefore  H.M.  by  and  with  the  advice  of  her 
said  Council  is  pleased  to  order  and  direct  that  the  said  scheme 
shall  come  into  force  on  a  certain  date. 

C  L.  PEEL. 

The  London  Gazette  is  prima  jacie  evidence  of  an  Order 
in  Council.  Such  orders  are  very  different  from  statutes ; 
judges  are  not  bound  to  take  judicial  notice  of  them. 

The  various  powers  which  parliament  has  delegated  may 
be  classified  according  to  their  nature. 

(1)  Power  of  laying  down  general  rules  which  shall  have 
the  force  of  law — much  is  now  done  in  this  way :   thus  the 
Home  Secretary  has  power  to  issue  general  orders  as  to  the 
discipline  and  pay  of  the  police,  the  Local  Government  Board 
has  power  to   issue  general  rules  as   to  the  government  of 
workhouses,  etc.     In  other  words   they  exercise   powers   of 
subordinate  legislation.     The  validity  of  these  rules  may  be 
questioned,  they  may  be  ultra  vires  and  so  invalid. 

(2)  Power  of  issuing  particular  commands :  thus  supposing 
that  a  sanitary  board  will  not  make  proper  sewers,  the  Local 
Government   Board,  on   being  satisfied  of  such  default,  may 
order  the  sewers  to  be  made  and  order  the  defaulting  authority 
to  pay  cost. 

(3)  Power  to  grant  licenses  for  this  and  that :   thus  the 
Home  Secretary  may  license  a  person  to  practise  vivisection, 
may  license  a  Jesuit  to  remain  in  England. 

(4)  Power  to  remit  penalties  :  not  uncommonly  given, 

(5)  Powers   of    inspection:    factories,   mines,    stores    of 
explosives. 

(6)  Inquisition:  holding  inquiries  into  explosions,  railway 
accidents,  etc. 

We  will  now  take  a  brief  survey  of  the  powers  of  the 
various  high  officers  of  state,  taking  them  one  by  one.  Our 
sketch  must  be  very  brief  and  imperfect,  but  still  it  may  serve 
to  give  us  some  insight  into  the  real  practical  working  of 
English  public  law. 

I.  First  we  have  the  Treasury.  There  are  five  lords  com- 
missioners for  executing  the  office  of  Lord  High  Treasurer :  a 


408  Constitutional  History  PERIOD 

First  Lord  (Mr  Smith,  Cabinet),  the  Chancellor  of  the 
Exchequer  (Mr  Goschen,  Cabinet)  and  three  junior  lords 
(Mr  Herbert,  Col.  Walrond,  and  Sir  Herbert  Maxwell)1. 
Legally  they  have,  at  least  for  the  most  part,  equal  powers. 
During  the  eighteenth  century  the  Lords  of  the  Treasury  used 
to  meet  as  a  board  and  transact  business  as  a  board,  and 
the  practice  of  holding  formal  meetings  was  maintained  until 
some  forty  years  ago2.  The  supreme  control  fell  more  and 
more  into  the  hands  of  the  Chancellor  of  the  Exchequer,  and 
now  the  junior  lords  are  in  the  view  of  parliament  very 
distinctly  his  subordinates.  The  First  Lord  does  very  little 
official  work.  Very  commonly  he  is  Prime  Minister ;  at 
the  present  moment  he  is  not  Prime  Minister,  but  he  is 
the  recognized  leader  of  the  House  of  Commons  ;  he  devotes 
himself,  I  believe,  rather  to  a  general  superintendence  of 
the  government  business  in  the  House  of  Commons  than  to 
the  exercise  of  those  legal  powers  which  he  has  as  a  Lord 
of  the  Treasury.  Now  acts  of  parliament  frequently  say 
that  this  that  and  the  other  matter  shall  or  may  be  done 
by  '  the  Treasury/  An  act  of  1849  declares  this  to  mean  that 
the  requisite  document  shall  be  signed  by  two  of  the  Com- 
missioners8. Such  a  document  is  required  for  a  vast  number 
of  purposes.  To  take  one  of  the  most  important :  when 
parliament  has  granted  a  supply  to  the  king  no  money  can 
come  out  of  the  Exchequer  except  in  obedience  to  a  warrant 
under  the  royal  sign  manual  countersigned  by  two  Lords  of 
the  Treasury ;  not  a  sixpence  of  the  money  voted  by  parlia- 
ment can  lawfully  be  spent  until  the  king  has  signed  a  warrant, 
and  this  is  countersigned  by  the  Lords  of  the  Treasury  (29  and 
30  Vic.,  c.  39).  I  doubt  whether  it  is  generally  known  how 
many  documents  the  queen  has  to  sign  :  were  she  to  lose  the 
use  of  her  hand  for  a  month  a  great  deal  of  public  business 
would  soon  be  in  utter  confusion.  In  1830  George  IV  found 
it  difficult  to  write,  an  act  of  parliament  had  to  be  at  once 

1  Written  in  1887-8. 

2  *  Since  1856  the  meetings  have  been  discontinued,' Anson,  The  Crown ,  p.  172. 

3  By  the  Interpretation  Act  of  1889  (52  and  53  Viet.,  c.  63)  the  expression 
'The  Treasury'  is  defined  to  mean  *  the  Lord  High  Treasurer  for  the  time  being  or 
the  Commissioners  lor  the  time  being  of  H.M.  Treasury.' 


V  The  Treasitry  409 

passed  authorizing  the  use  of  a  stamp  to  be  affixed  in  his 
presence  to  documents  which  required  the  use  of  the  royal 
sign  manual.  In  1811,  when  George  III  lost  his  wits,  the 
difficulty  was  much  more  serious ;  the  ministers  could  get  no 
money  because  the  king  could  not  sign  the  necessary  warrant: 
parliament  had  to  pass  a  resolution  authorizing  and  com- 
manding the  issue  of  money;  and  it  may  be  doubted  whether 
even  this  resolution,  to  which  the  king,  of  course,  could  not 
consent,  made  the  issue  legal.  But  not  only  is  the  sign 
manual  necessary,  the  counter-signature  of  two  Lords  of  the 
Treasury  is  necessary  also.  That  is  one  illustration  of  the 
powers  of  the  Treasury,  but  very  generally  you  will  find  that 
nothing  whatever  can  be  done  which  in  any  way  involves  the 
expenditure  of  public  money  without  the  consent  of  the 
Treasury :  this  is  required  by  law,  by  statute.  Then  it  is 
the  duty  of  the  Chancellor  of  the  Exchequer  to  present  to  the 
House  of  Commons  the  estimates  of  expenditure  and  to  make 
proposals  for  grants  by  which  such  expenditure  shall  be  met, 
to  recommend  the  imposition  and  the  remission  of  taxes. 

2.  We  turn  next  to  H.M.  principal  Secretaries  of  State. 
There  are  now  five.  During  the  greater  part  of  the  eighteenth 
century  there  were  but  two,  though  for  a  while  there  were 
three.  In  1801  we  have  three  :  one  for  Home  Affairs,  one  for 
Foreign  Affairs,  one  for  War  and  the  Colonies.  In  1854  a 
fourth  was  appointed,  War  being  separated  from  the  Colonies. 
In  1858,  when  an  end  was  put  to  the  East  India  Company, 
a  fifth  Secretary  of  State  was  appointed  to  look  after  Indian 
Affairs.  We  of  course  freely  talk  of  the  Home  Secretary,  the 
Foreign  Secretary  and  so  forth,  but  this  division  of  labour  is 
hardly  known  to  the  law.  The  language  of  statutes  generally 
is  'it  shall  be  lawful  for  one  of  H.M.  principal  Secretaries  of 
State/  Legally  any  one  of  the  five  secretaries  may  exercise 
that  power — the  subject  matter  of  the  act  will  decide  who  shall 
really  exercise  it,  thus  if  the  act  relates  to  the  Colonies  then 
it  will  be  exercised  by  the  Colonial  Secretary.  However,  to 
this  rule  there  are  exceptions.  I  know  of  one  instance  in 
which  a  statutory  power  is  given  to  the  Secretary  of  State  for 
the  Home  Department  (23  and  24  Vic.,c.  34,  an  Act  to  amend 
the  Law  relating  to  Petitions  of  Right). 


410  Constitutional  History  PERIOD 

Now  each  Secretary  of  State  has  very  large  powers — a  few 
given  him  by  the  common  law,  a  vast  number  given  to  him  by 
statute.  Thus  it  seems  certain  that  a  Secretary  of  State  may 
by  the  common  law  commit  to  prison  on  suspicion  of  treason 
or  any  treasonable  offence,  i.e.  commit  for  trial.  This  is  no 
great  matter  now-a-days  and  the  power  is  not  exercised, 
because  it  is  easy  enough  to  take  the  suspected  person  before  a 
justice  of  the  peace.  But  it  made  a  great  noise  in  the  eighteenth 
century  in  connection  with  the  proceedings  against  Wilkes. 
Lord  Halifax,  the  then  Secretary  of  State,  was  guilty  of 
issuing  warrants  which  the  courts  of  law  held  to  be  illegal : 
e.g.  a  warrant  to  seize,  not  A.  B.,  but  the  author  of  a  particular 
seditious  libel,  No.  45  of  the  North  Briton,  and  a  warrant  to 
seize  the  papers  of  A.  B.,  suspected  of  being  the  author  of  a 
seditious  libel.  However,  the  Court  of  Common  Pleas  had 
somewhat  reluctantly  to  hold  that  the  Secretary  of  State  had 
power  to  issue  a  warrant  fq>r  the  arrest  of  A.  B.,  suspected  of 
a  treasonable  or  seditious  offence:  how  he  had  acquired  that 
power  was  much  questioned,  but  it  had  been  exercised  during 
the  earlier  part  of  the  century,  and  its  existence  could  not  be 
denied.  This  power,  however,  is  a  small  matter,  though  it  has 
made  much  noise,  compared  with  the  vast  powers  with  which 
the  Secretary  of  State  has  been  entrusted  by  modern  statutes. 

A  few  examples  may  be  given  of  the  powers  entrusted  by 
statute  to  the  Home  Secretary. 

By  the  statute  instituting  the  modern  police  force,  1839, 
(2  and  3  Vic.,  c.  93,  s.  3)  the  Secretary  may  from  time  to  time 
issue  rules  for  the  government,  pay,  clothing  and  accoutrements 
of  the  constables.  The  County  force  cannot  be  increased  or 
diminished  without  leave  of  the  Secretary.  So  too  in  the 
government  of  prisons,  he  possesses  enormous  powers :  thus 
he  may  make  rules  as  to  classification  of  prisoners,  and  may 
interfere  in  particular  cases,  substituting  one  kind  of  hard 
labour  for  another. 

Again  he  has  received  vast  powers  over  the  regulation  of 
factory  labour  and  the  regulation  and  inspection  of  mines  and 
collieries.  The  attempt,  characteristic  of  modern  times,  to 
protect  the  economically  weaker  classes  has  given  rise"  to 
statutes  which  bristle  with  powers  entrusted  to  the  Secretary 


V  The  Home  Secretary  411 

of  State.  Thus,  for  instance,  his  license  is  required  for  vivi- 
section (1876,  39  and  40  Vic.,  c.  77). 

Again,  he  is  empowered  to  grant  certificates  of  naturaliza- 
tion, a  discretionary  power.  Notice  this  'devolution'  of  a 
power  once  kept  by  parliament  in  its  own  hand. 

These  are  instances  of  statutory  powers  :  but  the  Home 
Secretary  is  also  the  proper  adviser  of  the  crown  as  to  the  exer- 
cise of  certain  prerogative  powers:  for  instance,  that  of  pardon. 

Perhaps  the  Home  Secretary  is  more  interesting  to  us  than 
other  secretaries  ;  but  they  also  have  many  statutory  powers 
of  the  utmost  importance.  Thus,  to  take  but  one  example: 
the  act  'vliich  put  an  end  (1858)  to  the  government  of  India 
by  the  East  India  Company  provided  that  'all  the  powers 
and  duties  then  exercised  or  performed  by  the  East  India 
Company  should  in  future  be  exercised  and  performed  by  one 
of  H.M.  principal  Secretaries  of  State/ 

To  a  large  extent  the  powers  of  these  four  Secretaries 
consist  in  this,  that  it  is  for  them  (each  in  his  own  department) 
to  advise  the  queen  as  to  the  exercise  of  powers  which  by 
law  are  her  powers,  either  ancient  prerogative  powers  or  more 
modern  powers  given  to  her  by  statute.  Still  (especially  in 
the  case  of  the  army)  we  find  powers  given  expressly  to  the 
Secretary  for  War. 

All  Secretaries  are  invariably  in  the  cabinet:  each  has  a 
parliamentary  Under-Secretary,  who  is  a  minister  but  without 
a  seat  in  the  cabinet. 

3.  The  Admiral's  office  is  in  commission:   a  first  lord 
(cabinet)  and  three  junior  lords,  two  'naval' — not  necessarily 
in  parliament — and  one  '  civil/  in   parliament ;   all  of  them 
in  the  '  ministry/ 

This  is  a  really  deliberative  board. 

4.  Of  the  Lord- Lieutenant  of  Ireland  and  his  principal 
secretaries,  one  of  whom  is  often  in  the  cabinet,  we  have  no 
time  to  speak  ;  nor  of  the  new  Secretary  (not  of  State)  for 
Scotland,  created  in    1885   to  exercise  for  Scotland  powers 
theretofore  exercised  by  the  (Home)  Secretary  and  some  others 
taken  from  various  English  departments.     More  interesting 
to*u§  'ire :  the  Board  of  Trade,  the  Local  Government  Board, 
the  Education  Department,  the  Board  of  Agriculture. 


412  Constitutional  History  PF,RTOD 

5.  The  Board  of  Trade  is  in  form  a  committee  of  the 
Privy  Council,  consisting  of  a  President  and  certain  ex  ojficio 
members — the  First  Lord  of  the  Treasury,  the  Chancellor  of  the 
Exchequer,  the  Secretaries  of  State,  the  Speaker  of  the  House 
of  Commons,  and  the  Archbishop  of  Canterbury.     But  all  its 
powers  can   legally  be  and  are  exercised  by  the  President, 
who  practically  is  the  Board.     These  powers  are  vast  and 
most  various  :  in  particular  as  to  railways,  and  as  to  merchant 
shipping,  as,  for  instance,  the  detention  of  unseaworthy  ships. 
The  whole  of  our  mercantile  marine  has  by  an  elaborate  code 
been  placed  very  much  under  the  governance  of  the  Board  of 
Trade.    Then  again  since  1883  the  working  of  the  bankruptcy 
law  has  been  placed  in  the  hands  of  official  receivers,  appointed 
and  dismissible  by  and  answerable  to  the  Board  of  Trade. 

6.  The  Local  Government  Board,  created  by  an  act  of 
1871,  consists  of  a  President  and  of  certain  ex  officio  members 
(Lord  President  of  the  Council,  Secretaries  of  State,   Privy 
Seal  and  Chancellor  of  Exchequer),  but  all  its  powers  can  be 
exercised  by  the  President  with  the  counter-signature  of  his 
secretary  or  assistant  secretary.     Thus  it  is  a  board  only  in 
name1. 

Manifold  statutory  powers  in  the  working  of  our  poor  law 
and  sanitary  law  have  been  conferred  upon  it. 

The  Poor  Law  Amendment  Act  of  1834,  declared  central 
control  to  be  necessary  and  lodged  it  in  the  hands  of  three 
Poor  Law  Commissioners.  Then  (1847)  came  the  Poor  Law 
Board  consisting  of  a  number  of  high  state  officials  headed 
by  a  President.  Finally  in  1871  this  Board  was  merged  in 
the  newly-constituted  Local  Government  Board. 

In  a  most  general  way  all  paupers  are  placed  under  its 
'rules,  orders  and  regulations/  It  exercises  strict  control  over 
the  local  administrators — boards  of  guardians  ;  can  give  them 
orders,  and  (within  wide  bounds)  can  legislate  for  them. 

So  too  with  regard  to  the  sanitary  system:  the  great 
code  of  1875,  the  Public  Health  Act,  is  worked  in  districts  by 
'local  sanitary  authorities'  who  are  much  controlled  by  the 
Local  Government  Board. 

1  34  and  35  Viet.,  c.  70. 


V  High  Offices  of  State  413 

7.  The  Education   Department  is  also  in  form  a  com- 
mittee of  the  Privy  Council:  a  'Committee  of  the  Council  for 
Education/    More  recently  it  has  received  the  title  of  Educa- 
tion Department1     It  consists  of  the  Lord  President  of  the 
Council  and  the  Vice-President  of  the  Committee,  and  certain 
ex  officio  members,  e.g.  the  Chancellor  of  the  Exchequer.     The 
powers  of  the  committee  are  practically  exercised  by  the  Lord 
President  (for  whom  duties  have  thus  been  found)  and  the 
Vice-President1.     The  great   system   of    Public   Elementary 
Education  introduced  in  1870  is  placed  under  control  of  this 
department,   which   thus   has    very   large    statutory   powers, 
both  of  giving  particular  orders  and  of  laying  down  general 
rules. 

8.  In  1889  (52  and  53  Vic.,  c.  30)  a  Board  of  Agriculture 
was  created2,  consisting  of  a  President  of  the  Board,  the  Lord 
President  of  the  Council,  the  Secretaries  of  State,  the  First 
Lord  of  the  Treasury,  the  Chancellor  of  the  Exchequer,  the 
Chancellor  of  the  Duchy.     Here  also  the  powers  are  really 
wielded  by  the  President. 

9.  Of   the  other  high   officials  of  state  the  Postmaster- 
General  possesses  many  statutory  powers  and  sometimes  sits 
in  the  cabinet,  the  Lord  Privy  Seal  has  merely  formal  duties, 
while  the  Chancellor  of  the  Duchy  has  now  little  work,  for 
though  the  old  Palatine  Court  is  kept  up,  the  judicial  work  is 
done  by  a  Vice-Chancellor  who  is  a  judge. 

10.  Lastly   (though    he    is    highest   in    rank)  the   Lord 
Chancellor,  of  whom  more  hereafter,  is  always  a  member  of  the 
cabinet.     It  is  curious  that  one  who  is  the  highest  of  judges  is 
a  member  of  the  cabinet,  a  politician  actively  engaged  in 
party  warfare,  who  'goes  in  and  out  with  the  ministry/     It 
is  curious :    it  is  a  reminder  that  in  the  past  judicial  and 
governmental  functions  have  been  much  blended. 

As  an  illustration  of  the  actual  working  of  our  government 
system  we  cannot  do  better  than  take  the  Municipal  Corpora- 
tions Act,  1882  (45  and  46  Vic.,  c.  50),  our  best  specimen  of  a 
code;  we  find  powers  given  to  the  Queen  in  Council,  to  a 

1  The  Committee  of  Council  for  Education  was  superseded  by  a  Board  in  1899. 
62  and  63  Viet.,  c.  33. 

2  Since  1903  the  Board  of  Agriculture  and  Fisheries, 


414  Constitutional  History  PERIOD 

Secretary  (Home)  of    State,  to  the  Treasury,  to  the  Local 
Government  Bqard. 

Sec.  23.  A  Town  Council  may  make  bye-laws,  not  to  come 
into  force  for  forty  days :  a  copy  to  be  sent  to  the  Secretary ; 
if  within  that  time  it  is  disallowed  by  the  queen  with  the 
advice  of  her  Privy  Council  it  is  not  to  come  into  force. 

Sec.  28.  Accounts  to  be  sent  to  the  Local  Government 
Board,  which  is  to  lay  an  abstract  before  Parliament. 

Sec.  30.  If  two-thirds  of  a  Town  Council  agree  to  petition 
for  the  division  of  the  borough  into  wards,  it  shall  be  lawful  for 
H.M.  by  Order  in  Council  to  fix  the  number  of  wards.  There- 
upon the  Secretary  shall  appoint  commissioners  to  determine 
the  boundaries ;  the  scheme  of  boundaries  to  be  sent  to  the 
Secretary,  who  is  to  submit  it  to  H.M.  in  Council  for  approval. 

Sec.  62.  Day  for  electing  auditors  of  borough  accounts  is 
I  March  or  such  other  day  as  the  Town  Council  with  the 
approval  of  the  Local  Government  Board  shall  appoint. 

Sec.  105.  We  come  to  the  borrowing  powers  of  the  Town 
Council:  here  the  'approval  of  the  Tre^ury'  is  necessary;  so 
for  leases  and  sales  of  corporate  land. 

Sec.  154.  Administration  of  justice.  It  shall  be  lawful 
for  the  queen  from  time  to  time  to  assign  to  any  persons 
H.M.  commission  to  act  as  justices  of  peace  [this  implies 
the  action  of  the  Lord  Chancellor]. 

Sec.  161.  If  a  stipendiary  magistrate  be  wanted,  the 
Town  Council  may  petition  the  Secretary  to  make  an 
appointment,  and  thereupon  it  shall  be  lawful  for  the  queen  to 
appoint  a  barrister  of  seven  years'  standing. 

Sec.  162.  If  the  borough  wants  a  separate  Court  of  Quarter 
Sessions,  the  queen  on  petition  to  H.M.  in  Council  may  grant 
the  court. 

Sec.  164.  The  Table  of  fees  of  the  Clerk  of  the  Peace  is 
to  be  submitted  to  the  Secretary  of  State  for  confirmation. 

Sec.  210.  Grant  of  new  charters.  On  petition  of  the  in- 
habitants the  queen  by  the  advice  of  her  Privy  Council  may 
grant  a  charter,  but  the  petition  must  first  be  referred  to  a 
committee  of  the  Lords  of  H.M.  Privy  Council,  so  that 
objections  may  be  heard. 

etc.  etc. 


V:       Legal  Theory  of  the  Constitution      415 

;  My  object  in  saying  so  much  of  the  statutory  powers  by 
means  of  which  our  government  is  now-a-days  conducted,  is 
to  convince  you  that  the  traditional  lawyer's  view  of  the  con- 
stitution has  become  very  untrue  to  fact  and  to  law.  By  the 
traditional  lawyer's  view  I  mean  that  which  was  expressed  by 
Blackstone  in  the  middle  of  the  eighteenth  century,  and  which 
still  maintains  a  certain  orthodoxy.  According  to  that  view, 
while  the  legislative  power  is  vested  in  king  and  parliament, 
what  is  called  the  executive  power  is  vested  in  the  king  alone, 
and  consists  of  the  royal  prerogative.  Now  most  people  know 
that  this  is  not  altogether  true  to  fact — they  know  that  the 
powers  attributed  to  the  king  are  really  exercised  by  the 
king's  ministers,  and  that  the  king  is  expected  to  have 
ministers  who  command  the  confidence  of  the  House  of 
Commons.  Still  I  think  that  they  would  say  that  this  was 
a  matter  not  of  law,  but  of  convention,  or  of  constitutional 
morality — that  legally  the  executive  power  is  in  the  king, 
though  constitutionally  it  must  be  exercised  by  ministers.  But 
the  point  that  I  wish  to  make  is  that  this  old  doctrine  is  not 
even  true  to  law.  To  a  very  large  extent  indeed  England  is 
now  ruled  by  means  of  statutory  powers  which  are  not  in  any 
sense,  not  even  as  strict  matters  of  law,  the  powers  of  the 
king.  Let  us  take  an  instance  or  two.  Look  at  the  police 
force,  that  most  powerful  engine  of  government.  That  force 
was  gradually  created  by  means  of  a  series  of  statutes  ranging 
from  1829  to  1856.  To  some  extent  it  was  placed  under  the 
control  of  local  authorities,  of  the  justices  of  the  peace  in  the 
counties,  of  watch  committees  in  the  boroughs:  but  a  power 
of  issuing  rules  for  the  government  was  given — to  whom? 
not  to  the  queen,  but  to  one  of  H.M.  principal  Secretaries  of 
State,  which  means  in  practice  the  Home  Secretary.  It  is 
not  for  the  queen  to  make  such  regulations :  it  is  for  the 
Secretary.  So  as  to  the  administration  of  the  poor  law.  In 
1834,  when  the  law  was  remodelled,  a  central  authority  was 
created  with  a  large  power  of  issuing  rules,  orders  and 
regulations  as  to  the  relief  of  the  poor.  This  power  was 
given,  not  to  the  king,  but  to  certain  poor  law  commissioners, 
and  it  has  since  been  transferred  to  the  Local  Government 
Board  Look  again  at  the  powers  of  regulating  the  mercantile 


416  Constitutional  History  PERIOD 

marine  created  by  the  great  Merchant  Shipping1  Act  of  1854 
or  the  powers  relating  to  public  elementary  education  given 
by  the  act  of  1870.  These  are  not  given  to  the  queen — they 
are  given  in  the  one  case  to  the  Board  of  Trade,  in  the  other 
case  to  the  Education  Department1. 

.How  vast  a  change  has  taken  place  since  Blackstone's  day 
we  may  see  from  a  very  interesting  passage  in  his  book. 
Book  I,  chap.  IX.2  He  has  a  chapter  on  the  Subordinate 
Magistrates.  In  this  he  speaks  of  sheriffs,  coroners,  justices 
of  the  peace,  constables,  surveyors  of  highways,  and  overseers 
of  the  poor.  He  prefaces  it  with  the^e  words,  €  In  a  former 
chapter  of  these  commentaries  we  distinguished  magistrates 
into  two  kinds :  supreme,  or  those  in  whom  the  sovereign 
power  of  the  state  resides ;  and  subordinate,  or  those  who  act 
in  an  inferior  secondary  sphere.  We  have  hitherto  considered 
the  former  kind  only,  namely  the  supreme  legislative  power 
or  parliament,  and  the  supreme  executive  power,  which  is  in 
the  king;  and  are  now  to  proceed  to  inquire  into  the  rights 
and  duties  of  the  principal  subordinate  magistrates.  And 
herein  we  are  not  to  investigate  the  powers  and  duties  of 
his  majesty's  great  officers  of  state,  the  lord  treasurer,  lord 
chamberlain,  the  principal  secretaries  or  the  like ;  because 
I  do  not  know  that  they  are  in  that  capacity  in  any  con- 
siderable degree  the  objects  of  our  laws  or  have  any  very 
important  share  of  magistracy  conferred  upon  them  :  except 
that  the  secretaries  of  state  are  allowed  the  power  of  com- 
mitment in  order  to  bring  offenders  to  trial/  Now  that  is  a 
very  memorable  sentence,  and  on  the  whole  (though  perhaps 
it  is  a  little  exaggerated)  I  think  that  it  was  true  in  Blackstone's 
day.  The  lord  treasurer,  the  secretaries  of  state,  were  of  course 
very  important  persons — perhaps  quite  as  important  then  as 
now — but  the  law  knew  them  not,  or  merely  knew  them  as 
persons  who  advised  the  king  in  the  use  of  his  prerogatives. 
The  law  gave  powers  to  sheriffs  and  coroners,  to  surveyors  of 
highways  and  overseers  of  the  poor ;  it  gave  few  powers  to 

1  The  Merchant  Shipping  Act  of  1854  *s  now  superseded  by  the  Merchant 
Shipping  Act  oi  1894. 

a  Sir  William  Blackstone's  Commentaries  on  the  Laws  of  England  were 
published  in  1768— 9. 


V          Distribution  of  Execiitive  Power      4 1 7 

the  high  officers  of  state,  to  the  men  who  for  good  and  evil 
had  really  the  destinies  of  England  in  their  hands  :  the  powers 
that  they  in  fact  exercised  were  in  law  the  king's  powers. 
But  I  know  no  proof  of  the  power  of  Blackstone's  genius  so 
striking  as  the  fact  that  the  sentence  that  I  have  just  quoted 
should  be  repeated  now-a-days  in  books  which  profess  to  set 
forth  the  modern  law  of  England.  Does  not  our  law  know 
these  high  officers  of  state  ?  Open  the  statute  book,  on  almost 
every  page  of  it  you  will  find  'it  shall  be  lawful  for  the 
Treasury  to  do  this/  '  it  shall  be  lawful  for  one  of  the 
Secretaries  of  State  to  do  that.' 

This  is  the  result  of  a  modern  movement,  a  movement 
which  began,  we  may  say,  about  the  time  of  the  Reform  Bill 
of  1832.  The  new  wants  of  a  new  age  have  been  met  in  a 
new  manner — by  giving  statutory  powers  of  all  kinds,  some- 
times to  the  Queen  in  Council,  sometimes  to  the  Treasury, 
sometimes  to  a  Secretary  of  State,  sometimes  to  this  Board, 
sometimes  to  the  other.  But  of  this  vast  change  our  institu- 
tional writers  have  hardly  yet  taken  any  account.  They  go 
on  writing  as  though  England  were  governed  by  the  royal 
prerogatives,  as  if  ministers  had  nothing  else  to  do  than 
to  advise  the  king  as  to  how  his  prerogatives  should  be 
exercised. 

In  my  view,  which  I  put  forward  with  some  diffidence  and 
with  a  full  warning  that  it  is  not  orthodox,  we  can  no  longer 
say  that  the  executive  power  is  vested  in  the  king :  the  king 
has  powers,  this  minister  has  powers,  and  that  minister  has 
powers.  The  requisite  harmony  is  secured  by  the  extra-legal 
organization  of  cabinet  and  ministry.  The  powers  legally 
given  to  the  king  are  certainly  the  most  important,  but  I 
cannot  consent  to  call  them  supreme.  To  be  able  to  declare 
war  and  peace  is  certainly  an  important  power,  perhaps  the 
most  important  power  that  the  law  can  give,  and  this  belongs 
to  the  king.  But  the  power  to  make  rules  for  the  government 
of  the  police  force  is  also  an  important  power,  and  this  out- 
law gives  to  a  secretary  of  state.  The  one  power  may  be 
vastly  more  important  than  the  other,  but  it  is  in  no  sense 
supreme  over  the  other.  The  supremacy  of  the  king's  powers, 
if  it  is  to  be  found  anywhere,  must  be  found  in  the  fact 

M.  27 


418  Constitutional  History  PERIOD 

that  the  ministers  legally  hold  their  offices  during  his  good 
pleasure. 

There  is  one  term  against  which  I  wish  to  warn  you,  and 
that  term  is  'the  crown/  You  will  certainly  read  that  the 
:rown  does  this  and  the  crown  does  that.  As  a  matter  of  fact 
ive  know  that  the  crown  does  nothing  but  lie  in  the  Tower  of 
London  to  be  gazed  at  by  sight-seers.  No,  the  crown  is  a 
:onvenient  cover  for  ignorance :  it  saves  us  from  asking 
difficult  questions,  questions  which  can  only  be  answered  by 
study  of  the  statute  book.  I  do  not  deny  that  it  is  a 
:onvenient  term,  and  you  may  have  to  use  it ;  but  I  do  say 
:hat  you  should  never  be  content  with  it.  If  you  are  told 
that  the  crown  has  this  power  or  that  power,  do  not  be  content 
until  you  know  who  legally  has  the  power — is  it  the  king,  is 
it  one  of  his  secretaries :  is  this  power  a  prerogative  power 
sr  Js  it  the  outcome  of  statute?  This  question  is  often  an 
extremely  difficult  question,  and  one  of  the  difficulties  by 
which  it  is  beset  is  worthy  of  explanation. 

We  find  that  there  is  often  great  uncertainty  as  to  the 
exact  limits  of  the  royal  prerogative.  Since  the  settlement  of 
1688  very  little  has  been  done  towards  depriving  the  king  by 
any  direct  words  of  any  of  his  legal  powers.  Those  powers 
were  great,  and  they  were  somewhat  indefinite.  Very  seldom 
has  any  statute  expressly  taken  them  away,  very  seldom  has 
any  statute  said  in  so  many  words  *  it  shall  not  be  lawful  for 
the  king  to  do  this.'  But  without  directly  destroying  these 
prerogative  powers  statutes  have  created  a  large  number  of 
powers  dealing  with  the  same  matters,  some  given  to  the  king, 
some  to  one  or  to  another  of  his  great  officers.  Such  modern 
powers  have  been  definite  and  adapted  to  the  wants  of  modern 
times,  and  they  have  been  freely  used.  On  the  other  hand 
the  old  prerogative  powers  have  become  clumsy  and  anti- 
quated, and  have  fallen  into  disuse :  the  very  uncei  tainty  as 
to  their  limits  has  made  them  impracticable.  Still  they  have 
not  been  expressly  abolished,  and  to  the  legal  student  the 
question  must  often  occur  whether  they  are  or  are  not  in 
existence.  Remember  this,  that  we  have  no  such  doctrine  as 
that  a  prerogative  may  cease  to  exist  because  it  is  not  used. 
On  the  other  hand  we  shall  often  find  that  it  would  be 


V  7 *he  Prerogative  419 

extremely  difficult  to  use  these  prerogative.,  J3.aw.ers  without 
doing  something  definitely  unlawful.  Let  me  give  a  few 
examples. 

What  an  outcry  there  would  be  if  the  queen  were  to 
attempt  to  debase  the  coinage.  Probably  such  an  attempt 
would  cost  her  her  throne.  Nevertheless  Sir  M.  Hale  was  of 
opinion  that  the  king  had  power  to  debase  the  coinage,  and 
with  the  decided  cases  before  us  it  is  difficult  to  say  that  he 
was  in  the  wrong,  Even  Blackstone  was  not  certain  that  this 
power  did  not  exist1.  Well,  so  far  as  I  am  aware,  that  power 
has  never  been  expressly  taken  away  by  statute.  We  may 
say  pretty  confidently  that  the  power  does  not  exist,  but  why  ? 
Not  because  it  has  been  expressly  taken  away,  not  because  it 
has  fallen  into  desuetude,  but  because  for  a  very  long  time  past 
statutes  have  fixed  the  amount  of  gold  and  silver  in  the  coins  : 
thus  by  statute  a  sovereign  is  to  weigh  123*27447  grains,  and 
is  to  be  eleven-twelfths  gold  and  one-twelfth  alloy.  So  long 
as  such  statutes  exist  the  prerogative  power  of  regulating 
the  coinage  cannot  be  used,  but  it  is  not  until  we  have  gone 
through  those  statutes  and  seen  how  they  deal  with  the  whole 
matter  that  we  are  entitled  to  say  that  the  prerogative  is 
superseded. 

Take  a  more  difficult  case.  Can  the  king  erect  new  courts 
of  justice?  Most  indubitably  this  power  was  exercised  in  the 
Middle  Ages.  Nothing  was  commoner  than  for  the  king  by 
his  charter  to  grant  to  some  town  or  some  lord  of  a  manor 
the  right  to  hold  a  court.  Even  when  in  the  seventeenth 
century  the  Courts  of  Star  Chamber,  of  the  Council  of  Wales, 
of  the  Council  of  the  North,  had  become  hateful  burdens,  no 
one  seems  to  have  questioned  the  king's  power  of  erecting  new 
courts  of  common  law.  A  distinction  was  drawn  between 
courts  of  common  law  and  other  courts :  he  might  not  create 
a  new  court  of  equity.  Has  the  queen  then  now-a-days  a 
power  to  create  new  courts?  It  has  never  been  expressly 
taken  away,  and  I  believe  we  must  say  that  it  exists.  I  take 
this  from  a  recent  judgment,  *  It  is  a  settled  constitutional 
principle  or  rule  of  law,  that  although  the  crown  may,  by  its 

1  See  above,  p.  aflfr. 

27—2 


420  Constitutional  History  PERIOD 

prerogative,  establish  courts  to  proceed  according  to  the 
common  law,  yet  it  cannot  create  any  new  court  to  administer 
any  other  law ;  and  it  is  laid  down  by  Lord  Coke  in  the 
Fourth  Institute  that  the  erection  of  a  new  court  with  a 
new  jurisdiction  cannot  be  without  an  act  of  parliament' 
(In  re  Bp.  of  Natal,  3  Moore,  P.C.  (N.S.)  152).  As  a  matter 
of  fact  this  prerogative  power  of  erecting  new  courts  has 
not  been  used  in  England  for  a  very  long  time  past.  In 
recent  years  the  whole  country  has  been  covered  by  a 
network  of  new  local  courts — the  (so-called)  new  county 
courts.  But  this  was  not  done  under  an  exercise  of  the 
prerogative,  but  by  virtue  of  powers  given  to  the  Queen  in 
Council  by  a  statute  of  1846  (9  and  10  Vic.,  c.  95)  which 
regulated  the  jurisdiction  of  these  new  courts.  There  are 
two  reasons  why  this  prerogative  has  fallen  into  disuse, 
(i)  Owing  to  modern  changes  in  the  law  a  court  which 
could  administer  nothing  but  common  law  would  be  a  some- 
what useless  and  very  clumsy  affair.  (2)  Owing  to  the 
appropriation  of  supplies  the  queen  would  have  no  money 
with  which  to  pay  the  judges  of  new  courts  unless  she  took  it 
from  her  privy  purse.  Still  we  cannot  say  that  the  preroga- 
tive is  gone  ;  at  any  moment  it  might  become  important.  In 
the  first  part  of  the  eighteenth  century  courts  were  established 
in  India  by  virtue  of  the  royal  prerogative,  and  as  regards  the 
colonies  I  am  not  sure  that  the  power  has  not  been  exercised 
for  them  in  much  more  recent  times.  In  1827  the  law  officers 
advised  the  king  that  the  extent  of  his  power  to  create  a  new 
court  in  Canada  was  very  doubtful,  and  that  it  would  be  wiser 
to  obtain  an  act  of  parliament. 

Often  enough  this  difficulty  must  occur  to  anyone  who  is 
studying  our  constitutional  law.  He  will  be  told  that  a  prero- 
gative power  exists  ;  then  he  will  find  a  modern  statute  taking 
no  notice  of  that  prerogative,  but  enabling  the  king,  or  some 
one  of  the  high  officers,  to  exercise  a  more  limited  power. 
Then  the  question  will  occur  to  him — how  far  does  this  modern 
statutory  power  take  away  the  old  prerogative  power  ?  You 
will  understand  the  difficulty  better  from  an  example.  The 
great  Municipal  Reform  Act  of  1835  (now  represented  by  the 
Municipal  Corporations  Act,  1882,  45  and  46  Vic.,  c.  50) 


V        Doubtful  and  Disused  Prerogatives   421 

empowered  the  king  to  create  in  any  borough  a  separate 
Court  of  Quarter  Sessions  for  that  borough.  It  laid  down 
rules  as  to  the  exercise  of  that  power,  for  instance,  the  court 
was  to  be  held  by  a  recorder,  who  was  to  be  a  barrister  of 
five  years'  standing,  and  to  hold  office  during  good  behaviour. 
No  notice  was  taken  of  the  prerogative  power  of  erecting  new 
courts.  Now  suppose  that  the  queen  creates  a  Court  of 
Quarter  Sessions  which  does  not  exactly  comply  with  the 
language  of  the  statute — has  she  power  to  do  this?  Not  by 
statute ;  but  how  about  the  prerogative  power  ?  We  have 
to  consider,  and  it  may  be  a  very  delicate  question,  how  far 
the  act  has  tacitly  curtailed  the  royal  prerogative.  In  practice 
such  questions  may  seldom  arise — the  queen's  advisers  are 
careful  to  keep  within  the  limits  of  the  statutory  powers — 
but  for  the  student,  for  the  lecturer,  the  difficulty  is  very  great 
He  will  hardly  dare  to  say  that  in  no  conceivable  case  could 
the  old  prerogative  power  be  used  and  used  lawfully.  This 
comes  of  our  great  civility  to  the  king;  we  have  seldom 
said  to  him  'you  may  not  do  this/  we  have  said,  'you 
may  do  that*  and  then  left  to  ourselves  or  our  judges 
the  problem  of  deciding  how  far  the  '  may '  necessarily  implies 
a  c  may  not.' 

One  more  illustration  of  a  simpler  kind.  We  find  it  laid 
down  that  if  the  king,  under  his  great  or  his  privy  seal,  prohibits 
a  man  from  leaving  the  realm,  or  enjoins  him  to  come  back 
from  foreign  parts,  and  this  command  is  disobeyed,  the 
disobedience  may  be  punished  by  fine  and  imprisonment. 
I  believe  that  we  must  say  that  this  is  the  law,  though  for 
a  long  t\me  past  it  has  not  been  used,  and  though  any  use  of 
it  except  in  very  extraordinary  circumstances  would  surprise 
the  nation  and  create  a  great  outcry.  Thus  our  course 
is  set  about  with  difficulties,  with  prerogatives  disused,  with 
prerogatives  of  doubtful  existence,  with  prerogatives  which 
exist  by  suflcrance,  merely  because  no  one  has  thought  it 
worth  while  to  abolish  them. 


422  Constitutional  History  PERIOD 


C.     Classification  of  the  Pozvers  of  the  Crown. 

Still  we  must  do  our  best,  and  I  will  venture  to  suggest 
the  following  classification  of  the  powers  of  '  the  crown '  (by 
which  phrase  I  understand  the  powers  of  the  king  and  the 
powers  of  the  high  officers  of  state) : 

1.  Powers  relating  to  the  constitution,  assembling  and 
dissolving  of  parliaments,  and  of  assenting  to  statutes. 

2.  Powers  relating  to  foreign  affairs,  to  peace  and  war,  etc. 

3.  Powers  of  appointing  and  dismissing  officers,  civil  and 
military,  executive  and  judicial. 

4.  Powers  relating  to  the  collection  and  expenditure  of 
the  revenue. 

5.  Powers  relating  to  military  and  naval  forces. 

6.  Powers  connected  with  the  administration  of  justice. 

7.  Powers  connected  with  maintenance  of  order. 

8.  Powers  connected  with  social  and  economic  affairs, 
such  as  public  health,  education,  trade,  etc. 

9.  Powers    connected    with    religion    and    the    National 
Church. 

I  will  now  say  a  few  words  as  to  the  powers  of  the  first 
three  of  these  classes ;  the  others  we  will  treat  if  time  serves 
when  we  try  to  view  as  a  whole  the  Fiscal  System,  the  Military 
System,  the  Administration  of  Justice,  the  Police,  Social  and 
Economic  Government,  and  the  National  Church. 

I.  As  we  have  already  seen,  the  king's  power  of  summon- 
ing, proroguing,  dissolving  parliament,  is  very  large,  I  will 
not  go  over  this  ground  again.  Briefly  the  law  comes  to  this, 
that  a  parliament  cannot  be  kept  in  existence  beyond  seven 
years.  At  the  end  of  that  period  it  would  be  dissolved  without 
the  king's  action ;  on  the  other  hand  the  law  requires  that 
a  parliament  shall  sit  once  in  every  three  years,  but  does  not 
provide  any  machinery  whereby  a  parliament  can  come  into 
being  without  royal  summons,  should  the  king  disobey  this 
rule. 

Then,  without  the  king's  assent,  no  bill  can  become  law. 
A  statute  is  enacted  by  the  king,  by  and  with  the  advice  and 
consent  of  the  lords,  spiritual  and  temporal,  in  parliament 


V  Constitutional  Powers  423 

assembled,  and  by  the  authority  of  the  same.  It  is  only  since 
1445  that  these  last  words,  'by  the  authority  of  the  same/ 
become  a  regular  part  of  the  legislative  formula.  Go  back 
half  a  century  further,  and  acts  are  passed  by  the  advice  of 
the  lords  at  the  petition  of  the  commons.  But  to  this  day  the 
form  makes  the  statute  the  act  of  the  king.  To  speak  of  his 
power  as  a  veto  is  hardly  correct ;  the  bill  will  not  become 
law  if  he  merely  abstains  from  interfering,  it  will  not  become 
law  unless  he  expressly  assents.  The  last  occasion  on  which 
that  assent  was  withheld,  was  in  1707,  when  Anne  withheld  it 
from  the  Scotch  Militia  Bill.  William  III  had  withheld  it  on 
several  important  occasions.  It  seems  to  me  that  circum- 
stances might  be  conceived  in  which  the  king's  ministers  might 
advise  him  to  refuse  consent,  and  yet  escape  general  condem- 
nation, as  on  the  sudden  outbreak  of  a  war  or  some  similar 
unforeseen  emergency. 

Really,  however,  in  a  working  sketch  of  the  constitution  it 
is  more  important  to  notice  that  the  king  has  a  considerable 
power  in  constituting  one  of  the  two  Houses.  If  the  bishops 
are  not  royal  nominees,  this  is  merely  because  a  bare  form  of 
election  by  the  cathedral  chapters  is  kept  up.  The  king 
again  can  create  as  many  temporal  peers  as  he  pleases,  but  the 
hereditary  principle  makes  any  recourse  to  this  power  for  the 
purpose  of  packing  the  House  an  objectionable  measure. 
A  threat,  however,  of  using  it,  has  on  more  than  one  occasion 
proved  effectual,  and  without  doing  anything  that  is  thought 
at  all  strange,  a  modern  cabinet  can  use  this  prerogative  to 
reward  or  shelve  its  followers,  and  to  divide  the  members  of 
the  ministry  between  the  two  Houses. 

2.  Next,  I  should  place  the  prerogative  of  making  war 
and  peace.  This  power,  of  the  utmost  importance,  belongs  to 
the  king.  Without  the  consent  of  parliament  he  can  direct 
the  invasion  of  a  foreign  country.  Of  course,  parliament  has 
a  certain  check  on  this  power.  It  might  refuse  to  vote  the 
necessary  supplies.  What  is  more  to  the  purpose,  it  insists  on 
knowing  from  the  king's  ministers  what  are  the  relations 
between  the  king  and  foreign  governments,  on  having  diplo- 
matic correspondence  laid  before  it,  and  so  forth.  Still  it  takes 
no  act  of  parliament  to  make  a  war,  even  a  war  of  aggression, 


424  Constitutional  History  PERIOD 

and  practically  a  ministry  has  a  great  deal  of  power  as  regards 
foreign  affairs,  and  might  even  force  a  reluctant  nation  into 
a  war  from  which  it  would  be  impossible  to  withdraw.  This 
is  really  a  great  matter. 

Stephen  (following  Blackstone)  says  that  to  make  a  war 
completely  effectual  it  is  necessary  that  it  be  publicly  declared, 
and  duly  proclaimed  by  the  sovereign's  authority1.  I  believe 
that  to  be  misleading,  and  that  neither  English  law,  nor  what 
is  called  International  Law,  requires  any  formal  declaration  of 
war2.  I  believe  that  an  English  court  would  hold  that  there 
was  war  so  soon  as  the  queen  had  authorized  acts  of  hostility. 

Close  to  this  power  of  making  war  and  peace,  Blackstone 
speaks  of  the  power  of  making  treaties,  and  says  what  seems 
to  me  very  untrue.  '  It  is  also  the  sovereign's  prerogative  to 
make  treaties,  leagues  and  alliances  with  foreign  states  and 
princes.  For  it  is  by  the  law  of  nations  essential  to  the 
goodness  of  a  league,  that  it  be  made  by  the  sovereign  power; 
and  then  it  is  binding  upon  the  whole  community ;  and  in 
England  the  sovereign  power,  quoad  hoc,  is  vested  in  the  king. 
Whatever  contracts  therefore  he  engages  in,  no  other  power 
ih  the  kingdom  can  legally  delay,  resist  or  annul8/ 

Now  in  contradiction  to  this  we  may,  I  believe,  say  that 
a  treaty  made  by  the  king  has  in  general  no  legal  effect 
whatever4.  The  king,  as  just  said,  can  make  peace  and  can 
make  war,  and  the  making  of  either  will  of  course  have 
important  effects:  whether  an  act  be  a  laudable  attack  on 
a  public  enemy,  or  mere  piracy,  is  one  of  the  many  questions 
that  might  thus  be  decided.  Also  it  seems  certain  that  as  an 
incident  to  a  treaty  of  peace,  the  king  may  cede  territory, 
may  at  all  events  cede  territory  acquired  by  him  during  the 

1  H.  J.  Stephen,  New  Commentaries  on  the  Laws  o/  England^  \tf\\  edn.  vol.  II, 
p.  495  allows  that  'the  modern  practice  is  by  no  means  uniform.' 

2  A  Convention  was  signed  at  the  Hague  Conference  in  1907  according  to 
which  *  the  Contracting   Powers  recognise   that   hostilities  between   themselves 
must  not  commence  without  previous  or  explicit  warning  in  the  form  either  of  a 
reasoned  declaration  or  of  an  ultimatum  with  conditional  declaration  of  war.' 
Part.  Papers >  Miscellaneous,  No.  I,  1908. 

3  Commentaries  I,  c.  7  §  1 1 . 

4  This  view  was  upheld  by  the  Privy  Council  in  Walker  v.  Baird,  LR.  AC. 
1892,  p.  491. 


V  Treaty-making  Powers  425 

war1.  Exactly  how  far  this  power  extends  is  a  somewhat 
debateable  matter,  and  I  think  it  very  doubtful  whether  the 
queen  can  cede  land  subject  to  the  British  parliament,  except 
in  a  treaty  of  peace ;  could  she  sell  Jersey,  Guernsey,  or  Kent 
to  France?  I  much  doubt  it  When  in  1782  it  became 
necessary  to  recognize  the  independence  of  the  American 
Colonies,  an  act  of  parliament  was  passed  authorizing  the 
king  to  make  peace  and  to  repeal  all  statutes  relating  to  those 
Colonies2.  But  as  to  the  more  general  principle  put  forward  by 
Blackstone  and  Stephen,  its  unsoundness  can  be  easily  proved 
by  reference  to  the  law  about  extradition.  The  common  law 
of  England,  at  least  for  a  long  time  past,  has  been  that  though 
the  king  bound  himself  to  surrender  criminals,  still  the  treaty 
could  not  be  carried  out,  save  by  virtue  of  an  act  of  parliament. 
Suppose  that  under  such  a  treaty  a  person  was  arrested  and 
brought  before  one  of  the  courts  by  habeas  corpus ;  the  treaty 
would  have  been  treated  as  waste-paper — the  king  has  no  power 
to  send  men  out  of  the  country,  and  cannot  give  himself  power 
by  making  a  treaty.  This  has  been  law  at  least  all  through 
the  nineteenth  century.  It  is  fair  to  Blackstone  to  say  that 
the  point  was  not  so  clear  in  his  own  day.  The  Court  of 
Exchequer  seems  to  have  thought  that  the  king  might  hand 
over  fugitives.  However,  there  is  no  doubt  about  the  matter 
now.  Our  earliest  extradition  treaties  were  individually 
sanctioned  by  parliament.  The  general  act,  1870(33  and  34 
Vic.,  c.  52),  now  in  force,  enables  the  queen,  by  Order  in 
Council,  to  apply  that  act  in  the  case  of  any  foreign  state  with 
which  she  has  made  an  arrangement  for  reciprocal  extradition. 
This  is  a  good  instance  of  a  power  given  to  the  queen  by  act  of 
parliament,  one  of  those  royal  powers  which  we  do  not  usually 
call  prerogatives.  I  take  extradition  as  one  example,  but 
the  general  principle  is  quite  unsound.  Suppose  the  queen 
contracts  with  France  that  English  iron  or  coal  shall  not  be 
exported  to  France — until  a  statute  has  been  passed  forbidding 
exportation,  one  may  export  and  laugh  at  the  treaty.  Still, 

1  For  recent  cases  and  debates  bearing  on  the  cession  of  territory,  see  Ilbert, 
Government  of  India,  and  edn.  p.  207. 

3  11  Geo.  Ill,  c.  46:  see  Forsyth,  Cases  and  Opinions  in  Constitutional  Law > 
pp.  182 — 4,  on  the  general  question  of  the  power  to  cede  territory.  F.  W.  M. 


426  Constitutional  History  PERIOD 

though  this  Is  so,  we  must  remark  that  the  king  has  here 
a  very  substantial  power,  though  it  does  not  operate  directly 
on  the  law.  It  would  obviously  be  a  serious  step,  were 
parliament  to  refuse  to  pass  the  laws  necessary  for  carrying 
out  a  treaty  already  concluded.  The  honour  of  the  nation 
might  be  already  pledged.  The  interrogation  of  ministers  in 
parliament,  perhaps,  is  a  sufficient  guard  against  this  danger. 

In  this  context  the  power  to  send  and  receive  ambassadors 
deserves  notice.  It  has  some  important  legal  effects.  An 
ambassador  accredited  to  the  queen  occupies  a  very  privileged 
place.  To  a  large  extent  he,  his  family,  his  suite  and  his 
servants,  are  placed  outside  the  ordinary  civil  and  criminal 
law  of  the  country,  it  being  unlawful  and  criminal  to  arrest 
them,  or  to  exercise  any  compulsory  process  against  them. 
In  this  matter  the  English  courts  receive  what  they  consider 
to  be  the  best  doctrines  of  International  Law.  But  the  arrest 
of  an  ambassador,  or  of  any  servant  of  his,  publicly  registered 
as  such,  is  punishable  under  a  statute  of  1708  (7  Anne,  c.  12), 
That  statute  was  passed  in  consequence  of  the  ambassador  of 
Peter  the  Great  having  been  arrested  for  debt,  and  it  denounces 
a  very  severe  punishment  against  those  who  are  guilty  of  like 
acts  in  the  future.  The  exact  limits  of  the  privilege  are  not 
in  all  respects  well  defined,  and  are,  I  think,  best  discussed  as 
a  topic  of  International  Law. 

A  brief  note  on  the  treatment  by  our  law  of  aliens  may 
not  be  out  of  place.  By  the  common  law,  and  down  to  1870, 
an  alien  could  not  hold  real  property  in  England.  The 
common  law  allowed  him  to  hire  a  house  for  his  own  habita- 
tion, and  an  act  of  1 844  (7  and  8  Vic.,  c.  66),  allowed  him  in 
certain  circumstances  to  take  a  lease  for  21  years  at  the 
longest.  He  was  incapable  of  inheriting  land,  and  if  he 
purchased  land  the  king  became  entitled  to  it — might  turn 
him  out,  and  take  the  land  to  himself.  On  the  other  hand 
the  alien  could  hold  movable  goods,  could  deal  with  them 
freely,  and  bring  actions  for  debts  or  for  wrongs  done  to  his 
person  or  his  goods.  In  1870  the  law  was  changed  by  the 
Naturalization  Act  (33  and  34  Vic.,  c.  14),  which  declared  that 
real  and  personal  property  of  every  kind  in  the  United 
Kingdom  might  be  acquired,  held,  and  disposed  of  by  an 


V  The  Law  of  Aliens  427 

alien,  as  though  he  were  a  British  subject;  but  he  was  not 
qualified  to  be  the  owner  of  a  British  ship,  and  the  act  did  not 
qualify  him  for  any  office,  or  for  any  parliamentary,  municipal, 
or  other  franchise.  I  believe  that,  as  regards  all  that  we  can 
call  private  law,  property,  tort,  contract  and  so  forth,  we  have 
no  need  now-a-days  to  distinguish  between  subject  and  alien, 
save  in  that  one  matter  of  the  ownership  of  British  ships.  On 
the  other  hand  I  think  we  may  say  that  as  a  general  rule  our 
common  law,  still  in  force,  excludes  aliens  from  political  offices 
and  political  rights,  and  the  act  of  1700  settling  the  succession 
to  the  crown  expressly  declares  that  no  alien  can  be  a  member 
of  the  Privy  Council,  or  of  either  House  of  Parliament.  But 
an  alien  can  gain  even  political  rights  by  ceasing  to  be  an 
alien  :  by  becoming  naturalized. 

An  act  of  parliament  might  of  course  turn  an  alien  into 
a  subject,  and  until  lately  acts  having  the  object  of  naturalizing 
this  or  that  foreigner  were  not  uncommon.  A  statute, 
however,  was  necessary ;  it  seems  to  have  been  established  at 
an  early  time,  certainly  before  Coke,  that  the  king  without 
parliament  could  not  turn  an  alien  into  a  subject  for  all 
purposes.  He  might  for  some,  but  not  for  all.  This  doctrine 
gave  rise  to  the  class  of  persons  known -as  denizens — inter- 
mediate between  subjects  and  aliens.  The  denizen  was  so 
made  by  the  king's  letters  patent,  i.e.  by  an  act  done  by  the 
king  without  parliament  The  limit  to  the  royal  power  (as 
I  understand  it)  was  this :  the  person  whom  the  king  made 
a  denizen  of  his  realm  became  capable  of  acquiring  lands  by 
purchase  or  devise,  and  of  holding  them  when  acquired,  and 
in  general  he  became  a  subject  of  the  realm,  but  the  king 
could  not  make  him  capable  of  inheriting.  An  act  of  parlia- 
ment might  of  course  do  even  this,  and  Naturalization  Acts 
(I  believe)  usually  did  it,  but  the  king  could  not  do  it.  This 
is  worthy  of  notice  as  a  good  illustration  of  a  matter  of  which  I 
have  already  spoken.  Neither  now  nor  at  any  time  past  can  we 
say  with  any  exactness  that  the  function  of  the  English 
parliament  is  purely  legislative,  that  of  the  English  king 
purely  executive.  Parliament  habitually  passed  acts  natural- 
izing this  person  and  that  by  name ;  if  we  call  these  acts 
legislative,  how  are  we  to  refuse  the  same  term  to  letters 


428  Constitutional  History  PERIOD 

patent,  which  do  almost  exactly  the  same  thing?  The  line 
between  making  A.  B.  a  denizen  and  naturalizing  him  is  not 
the  line  between  executive  and  legislative  functions.  The  act 
of  1870,  amending  the  previous  act  of  1844,  has  provided 
a  mode  whereby  persons  may  be  naturalized  without  special 
act  of  parliament,  but  has  expressly  preserved  the  queen's 
power  of  granting  letters  of  denization.  I  should  imagine  that 
such  power  is  seldom  if  ever  used,  for  it  is  easy  to  become 
naturalized.  British  nationality  can  now  be  granted  by  a 
Secretary  of  State.  The  applicant  must  have  resided  in  the 
United  Kingdom  for  five  years,  or  have  been  in  the  service  of 
the  crown  for  five  years,  and  must  intend  when  naturalized 
to  reside  in  the  United  Kingdom,  or  to  serve  under  the  crown. 
The  Secretary  has  an  absolute  discretion  in  giving  or  with- 
holding the  desired  certificate,  and  need  assign  no  reason  for 
refusal.  The  oath  of  allegiance  must  be  taken.  If  the 
certificate  be  granted,  then  the  naturalized  alien  shall,  within 
the  United  Kingdom,  have  all  political  and  other  rights  and 
privileges  to  which  a  British  subject  is  entitled1. 

3.  I  think  it  well  to  notice  separately  that  almost  all 
those  who  have  any  governmental  or  judicial  powers  of  any 
high  order  are  appointed  by  the  queen  ;  if  their  powers  are 
of  a  judicial  kind,  they  generally  hold  office  during  good 
behaviour;  if  their  powers  are  not  judicial,  they  generally  hold 
office  merely  during  the  queen's  good  pleasure  and  no  reason 
need  be  assigned  for  dismissing  them.  I  think  it  well  to 
notice  this  separately,  for  it  is  these  powers  of  appointment 
and  dismissal  which  give  to  our  scheme  of  government  the 
requisite  unity.  The  privy  councillors  hold  their  places  during 
good  pleasure,  so  do  those  high  officers  of  state  who  form  the 
ministry.  It  is  not  usual  to  remove  a  privy  councillor,  and 
as  regards  the  choice  of  ministers,  the  king  is  practically 
obliged  to  suit  himself  to  the  will  of  the  House  of  Commons. 
But  the  legal  power  is  absolute ;  and  it  is  just  because  the 
legal  power  is  absolute  that  our  system  of  party  government 
is  possible. 

I  mention  this  power  of  appointing  and  dismissing  the 

1  A  criticism  of  the  Act  may  be  found  in  the  Report  of  an  Inter-departmental 
Committee  on  the  Naturalization  Laws,  1901. 


V  Official  Appointments  429 

high  officers  of  state  by  itself  because  it  is  so  very  important, 
but  of  course  the  king  has  a  very  general  power  of  appointing 
not  only  those  whom  we  speak  of  as  collectively  forming  the 
ministry,  but  all  or  almost  all  of  those  who  hold  public  offices 
of  first-rate  importance.  Blackstone  calls  him  the  fountain  of 
honour,  of  office  and  of  privilege.  As  regards  mere  honours,  it 
were  needless  to  say  much;  the  making  of  knights  and  baronets, 
the  invention  of  new  orders  of  knighthood,  the  conferring 
of  ceremonial  precedence,  is  no  very  great  matter;  and  as 
to  the  power  of  making  peers,  which  is  of  considerable 
importance,  we  have  already  spoken.  But  look  at  the  whole 
legal  structure  of  society,  and  we  shall  generally  find  that 
the  holders  of  important  public  offices  are  appointed  by  the 
king  and  very  commonly  hold  their  posts  merely  during  his 
pleasure.  I  do  not  think  it  possible  to  lay  down  any  sweeping 
principle  about  this  matter :  the  terms  and  mode  of  appoint- 
ment vary  very  greatly.  Thus  almost  all  persons  who  have 
any  judicial  duties  to  perform  are  appointed  by  the  king, 
but  that  is  not  universally  true ;  the  county  court  judges 
are  appointed  by  the  Lord  Chancellor  under  statutory  power. 
Again,  we  may  say  that  since  1700,  it  has  been  the  general 
policy  of  the  legislature  to  secure  the  independence  of  the 
judges  by  making  their  tenure  of  office  tenure  during  good 
behaviour.  The  judges  of  the  superior  courts  hold  during 
good  behaviour,  but  can  be  dismissed  on  an  address  presented 
by  both  Houses  of  Parliament.  The  tenure  of  the  county 
court  judges  is  rather  different :  they  can  be  removed  by  the 
Lord  Chancellor  for  inability  or  misbehaviour.  On  the  other 
hand  the  justices  of  the  peace,  whose  duties  may  perhaps  be 
said  to  be  in  part  judicial,  in  part  executive,  hold  only  during 
good  pleasure  and  can  be  dismissed  without  the  assignment 
of  any  cause.  It  is,  on  the  other  hand,  the  general  policy  of 
our  modern  law  that  executive  officers  shall  hold  only  during 
good  pleasure,  shall  be  dismissible  without  the  assignment 
of  any  cause.  But  we  must  look  to  the  statute  book  about 
each  office,  and  not  rely  very  confidently  on  any  general 
principle.  For  instance,  take  the  Comptroller  and  Auditor- 
General:  we  do  not  call  him  a  judge;  still  it  has  been  thought 
of  exceeding  importance  that  he  should  be  a  very  independent 


43°  Constitutional  History  PERIOD 

person,  and  looking  to  the  act  under  which  he  is  appointed 
(1866,  29  and  30  Vic.,  c.  39),  we  find  that  he*  holds  during 
good  behaviour  subject  to  removal  on  an  address  presented  by 
both  Houses  of  Parliament  We  must  remember  too  that  we 
cannot  state  this  general  policy  as  a  rule  of  common  law ; 
formerly  the  king  had  a  very  large  power  of  granting  offices 
on  what  terms  he  pleased;  down  to  William  Ill's  reign,  we 
find  the  judges  appointed  durante  beneplacito ;  on  the  other 
hand  a  large  number  of  executive  offices,  as  we  should  call 
them,  places  in  the  Exchequer  and  so  forth,  were  held  for 
life  or  for  several  lives.  To  take  one  more  instance :  a  county 
police  force  is  under  the  command  of  a  chief  constable.  Now 
a  priori  we  cannot  tell  whether  or  no  this  officer  is  appointed 
by  the  king ;  were  we  to  guess  that  he  is,  we  should  guess 
wrongly,  for  he  is  appointed  by  the  justices  in  quarter  session. 
The  extent  to  which  what  I  may  call  the  subordinate  govern- 
ment of  the  country  is  under  the  control  of  the  king,  the 
central  government,  the  extent  to  which  it  is  ordered  by  local 
authorities,  the  quarter  sessions,  the  municipal  counties,  the 
constitution  of  these  local  authorities — these  are  matters 
regulated  in  various  ways  by  countless  acts,  which  can  only 
be  studied  in  detail.  A  great  vague  phrase  such  as  'The 
executive  power  is  in  the  king  and  is  exercised  by  the 
ministry'  gives  us  no  help  whatever. 

D.     Tlie  Fiscal  System. 

We  turn  to  say  a  little  of  our  fiscal  system — of  the  col- 
lection and  expenditure  of  the  royal  or  the  national  revenue. 
The  first  point  that  we  have  to  seize  in  dealing  with  this 
subject  historically  is  that  in  old  times  the  national  revenue 
was  very  really  the  king's  revenue,  or,  to  put  it  another  way, 
there  was  no  national  revenue ;  whatever  money  came  to  the 
king's  hand  was  his  to  deal  with  as  he  pleased,  whether  it 
consisted  of  the  rents  of  his  demesne  lands,  or  the  profits 
of  the  feudal  tenures,  or  the  outcome  of  the  aids  or  subsidies 
granted  to  him  by  the  great  council  of  the  nation.  The 
crown  lands  were  the  king's  lands ;  what  is  more,  the  king's 
lands  were  the  crown  lands — a  distinction  between  the  king's 


V  National  and  Royal  Revenue         431 

private  capacity  and  his  public  capacity  was  not  yet  observed. 
Before  the -Norman  Conquest  there  was  indeed  land  which 
was  conceived  of  as  belonging  to  the  people,  the  folk-land  ; 
and  the  king  himself  could  make  no  part  of  it  his  own  without 
the  consent  of  the  wise1.  But  at  the  Conquest  this  simply 
becomes  terra  Regis,  and  very  probably  the  Conquest  did 
but  hasten  the  end  of  a  process  that  had  already  gone  far. 
In  later  days  we  find  the  practical  denial  of  any  distinction 
between  the  property  which  the  king  has,  as  king,  and  the 
property  that  he  has,  as  man,  carried  to  its  logical  extreme. 
4  If/  says  Coke,  'the  king  purchaseth  lands  of  the  custom 
of  gavelkind  and  die  leaving  divers  sons,  the  eldest  son  shall 
only  inherit  these  lands2/  So  on  the  death  of  Edward  VI 
all  his  fee  simple  lands,  however  acquired,  descended  to 
the  Lady  Mary,  to  the  exclusion  of  her  half-sister  the  Lady 
Elizabeth.  All  the  lands  of  the  king,  by  whatever  title 
acquired,  were  his  to  grant  away  as  he  pleased ;  on  the  other 
hand,  he  could  not  devise  them  by  his  will.  The  notion 
that  the  king  was  in  any  sense  a  trustee  for  the  nation  of 
these  lands  grew  up  but  very  slowly ;  rather  the  notion  was 
that  the  king  had  a  large  property  of  his  own,  and  that  he 
ought  not  therefore  to  come  begging  of  his  subjects  except 
on  special  occasions.  No  distinction  was  taken  between  land 
which  the  king  had  bought  with  money  out  of  his  own  pocket 
and  land  which  came  to  him  by  way  (for  example)  of  escheat. 
Nor  was  this  singular;  other  persons  besides  the  king  got 
lands  by  way  of  escheat.  Complaints  against  the  king's  lavish 
grants  to  his  favourites  are  from  time  to  time  loud,  but  they 
do  not  issue  in  prospective  legislation ;  they  issue  in  acts  of 
resumption — acts  enabling  or  obliging  the  king  to  resume  the 
lands  granted  away  by  himself  or  his  predecessors.  Thus  in 
1450  a  general  act  of  resumption  was  passed,  by  which  all 
grants  made  since  the  accession  of  Henry  VI  in  1422  were 
annulled.  A  similar  act  was  passed  in  1473  under  Edward  IV. 
In  1485,  immediately  after  the  Battle  of  Bosworth,  the  grants 
made  by  the  kings  01  the  House  of  York  were  annulled.  This 
was,  I  believe,  the  last  precedent8  for  an  act  of  resumption 

1  See  above,  p.  57.  2  Co.  Lit.  15  4. 

3  Some  lands  granted  to  abbeys  in  the  reign  of  Queen  Mary  were  resumed  by 
i  Eliz.  c.  24. 


432  Constitutional  History  PERIOD 

when  in  1700  William  III  was  compelled  to  assent  to  an  act 
annulling  all  his  grants  of  Irish  land.     The  passing  of  this 
act  is  described  at  the  very  end  of  Macaulay's  history ;  it  is 
perhaps  the  most  noteworthy  example  of  the  practice  known 
as  '  tacking  a  money-bill ' — the  assent  of  the  House  of  Lords 
to  a  measure  which  may  well  seem  to  us  extremely  unjust 
was  extorted  by  the  addition  to  the  bill  of  clauses  granting 
the  land  tax ;   the  lords,  it  was  contended,  could  not  amend 
this  money-bill,  while  to  reject  it  would  have  been  to  deprive 
the  crown  of  the  means  of  carrying  on  government.     It  was, 
I  believe,  this  incident  which  led  to  the  first  prospective  re- 
straint on  the  king's  power  of  granting  away  his  lands.     On 
the  accession  of  Anne  an  act  was  passed  (i  Anne,  c.  i)  which 
restricted  the  queen's  power  of  alienation  to  the  granting  of 
leases,  which  in  general  were  not  to  be  for  more  than  31  years 
or  three  lives,  and  were  to  reserve  the  ancient  rent  or  a  reason- 
able rent.     Now  even  this  act  drew  no  distinction  between 
lands  belonging  to  the  queen  in  her  public,  and  those  belonging 
to  her  in  her  private  capacity.     It  placed  the  same  restriction 
on  the  alienation  of  any  of  her  lands.     It  is  just  another 
century  before  the  distinction,  to  which  I  have  referred,  finds 
expression   in   the   statute   book.     This   was   done   in    1800 
by  39  and  40  Geo.  Ill,  c.  88.     By  a  process  which  I  shall 
describe  hereafter,  a  distinction  had  by  this  time  been  made 
between  that  part  of  the  royal  revenue  that  was  devoted  to 
the  support  of  the  king's  household  and  of  the  honour  and 
dignity  of  the  crown  of  Great   Britain  and  the  great  bulk 
of  the  revenue  which  was  to  be  used  for  what  we  may  loosely 
call  national  purposes,  and  since  the  accession  of  George  III 
the  revenue  of  the  crown  lands  had  come  under  the  latter 
head.     It  was  at  least  a  serious  question  whether  lands  which 
King  George  had  bought  out  of  what  may  be  styled  his  own 
pocket-money  were  not  subject  to  that  restraint  on  alienation 
that  was  imposed  in  1701.     So  in  1800  parliament  enabled 
the  king  to  hold  land  in  a  private  capacity.     Land  purchased 
by  him  out  of  money  devoted  to  his  privy  purse  was  to  be 
held  by  him  with  all  that  liberty  of  alienation  that  a  subject 
has ;  he  was,  for  example,  to  have  power  to  devise  them  by 
his  will.     However  a  good  many  other  statutes  have  been 


V  The  King's  Ordinary  Revenue        433 

required  to  make  this  matter  clear,  and  I  think  that  it  is 
not  until  1862  that  we  find  in  the  statute  book  such  a  phrase 
as  '  the  private  estates  of  Her  Majesty.1  I  am  not  very  sure 
that  one  part  of  the  old  law  does  not  yet  prevail.  The  king, 
it  used  to  be  said,  could  have  no  heir  but  the  heir  to  the 
crown.  I  have  given  you  Coke's  illustrations  of  this  and  I 
cannot  find  that  the  rule  has  been  altered  ;  so  that  if  the 
queen  died  intestate  and  if,  according  to  the  usual  canons  of 
inheritance,  three  daughters  would  be  her  co-heiresses;  the 
eldest  would  inherit  not  only  the  crown  of  Great  Britain  but 
also  Osborne  House  or  whatever  private  estates  in  fee  simple 
the  queen  had  at  her  death.  But  I  will  not  say  this  confidently, 
for  there  are  many  long  acts  of  parliament. 

I  mention  these  things  in  order  to  show  how  slow  and 
how  recent  has  been  the  growth  in  our  law  of  that  distinction 
between  the  national  revenue  and  the  king's  private  pocket- 
money  which  we  naturally  suppose  to  exist.  It  has  taken 
many  statutes  to  get  this  matter  clear.  It  becomes  clear 
gradually  as  parliament  takes  upon  itself  to  appropriate  the 
supplies  that  it  grants,  to  say  that  they  are  only  to  be  used 
for  certain  definite  purposes.  Of  the  early  history  of  this 
appropriation  of  supplies  we  have  already  said  something. 
In  1665  Charles  II  asked  a  very  large  sum  of  money  for  the 
Dutch  war,  and  consented  that  a  clause  should  be  inserted 
in  the  act  declaring  that  the  money  raised  under  that  act 
should  be  applicable  only  to  the  purposes  of  the  war.  This 
was  an  important  concession,  and  similar  appropriations  were 
afterwards  made  during  his  reign.  Since  the  Revolution  the 
practice  has;  I  believe,  never  varied ;  in  granting  money  to 
the  crown,  parliament  has  appropriated  the  supply  to  par- 
ticular purposes  more  or  less  narrowly  defined. 

At  this  point  it  becomes  necessary  to  remember  that  the 
king  had  a  very  considerable  revenue  which  was  not  granted 
to  him  by  parliament.  This  is  what  Blackstone  speaks  of  as 
the  king's  ordinary  revenue  as  contrasted  with  that  extra- 
ordinary revenue  which  arises  from  taxation1.  He  classifies 
it  thus :  first  there  are  revenues  of  an  ecclesiastical  kind,  the 

1  Commentaries^  vol.  I,  c.  S. 
M.  28 


434  Constitutional  History  PERIOD 

custody  of  the  temporalities  of  bishops,  the  first-fruits  and 
tenths,  and  some  minor  matters.  Next  come  the  rents  of  the 
demesne  lands,  the  profits  of  tenure,  wardships  and  marriages 
(abolished  at  the  Restoration),  also  the  prerogatives  of  pur- 
veyance and  preemption  (abolished  at  the  same  time),  the 
profits  of  the  royal  forests ;  the  profits  of  the  king's  ordinary 
courts  of  justice,  fines,  forfeitures,  artiercements ;  royal  fish ; 
wreck  of  the  sea;  royal  mines;  treasure  trove;  waifs,  estrays, 
deodands,  escheats,  idiots.  Many  of  these  sources  of  income 
must  always  have  been  trifling,  others  became  trifling  in  course 
of  time,  but  still  in  the  seventeenth  century  the  king  had  a 
considerable  revenue  which  was  all  his  own  ;  he  required  no 
grant  from  parliament  to  help  him  to  this,  and  to  dictate 
to  him  how  he  should  spend  this  would  have  been  a  strong 
measure;  in  such  case  he  might  plausibly  have  complained 
that  he  was  treated  more  harshly  than  the  meanest  of  his 
subjects,  who  would  be  suffered  to  spend  his  own  income  in 
his  own  way.  The  crown  lands  were  still  of  considerable 
value  and  much  profit  could  be  made  of  the  feudal  rights,  also 
of  purveyance  and  preemption. 

Now  at  the  Restoration  the  most  profitable  sources  of  this 
hereditary  revenue  were  abolished.  You  will  have  been  ac- 
customed to  consider  the  abolition  of  the  military  tenures  as 
an  incident  in  the  history  of  the  law  of  real  property.  It  is 
far  more  than  this :  it  is  a  great  event  in  the  history  of  the 
royal  and  national  revenue.  It  was  necessary  to  compensate 
the  king  for  the  loss  of  income  that  he  was  to  sustain  ;  'and 
now/  says  the  act,  'to  the  intent  and  purpose  that  his  Majesty 
his  heirs  and  successors  may  receive,  a  full  and  ample  recom- 
pence  and  satisfaction'  for  the  abolished  rights,  'be  it  enacted 
that  there  shall  be  paid  to  the  king's  Majesty  his  heirs  and 
successors  for  ever  hereafter  in  recompense  as  aforesaid '  the 
rates  and  duties  following.  The  act  then  imposes  certain 
excise  duties  on  beer,  cider,  spirits  and  so  forth.  Now  this 
is  the  hereditary  excise,  given  to  the  king,  his  heirs  and  suc- 
cessors for  ever  as  a  valuable  consideration  for  abolition  of 
the  military  tenures.  This  then  gave  to  the  king  a  source 
of  ordinary  and  hereditary  revenue  consisting  of  a  tax.  Also 
it  imposed  a  perpetual  tax,  and  this  was  a  new  thing.  The 


V  Origin  of  the  Civil  List  435 

indirect  taxes,  the  customs,  tonnage  and  poundage  had  indeed 
been  granted  to  the  king  for  life  from  the  time  of  Henry  VII 
to  that  of  James  I,  but  only  for  life ;  and,  as  you  will  re- 
member, parliament  had  refused  to  grant  them  to  Charles  I 
for  more  than  a  year.  The  direct  taxes,  the  subsidies,  tenths 
and  fifteenths  were  granted  for  the  occasion  only. 

But  it  is  not  of  the  manner  of  taxation  that  I  would  at 
this  moment  speak,  but  rather  of  the  gradual  separation  of 
what,  using  unlawyerly  terms,  we  may  call  the  king's  private 
pocket-money  from  the  national  revenue.  When  William  III 
came  to  the  throne  he  had  the  hereditary  excise,  also  he  had 
what  remained  of  the  old  hereditary  revenue.  Parliament 
granted  to  him  and  Mary  a  further  excise  for  their  joint  lives 
and  the  life  of  the  survivor.  This  revenue  was  the  king's  and 
unappropriated.  In  1698  a  step  was  made.  I  think  we  may 
say  that  for  the  first  time  the  notion  of  a  civil  list  appears  on 
the  statute  book.  It  is  intended,  says  the  act,  that  the  sum 
of  ^700,000  a  year  shall  be  supplied  to  his  majesty  for  the 
service  of  his  household  and  family,  and  for  other  necessary 
expenses  and  occasions.  A  new  tax,  a  tonnage  and  poundage, 
is  granted  to  the  king  for  his  life,  but  it  is  provided  that  if 
the  revenue  arising  from  certain  sources  there  mentioned, 
including  the  crown  lands,  many  of  the  smaller  prerogatives, 
the  hereditary  excise,  the  excise  which  William  has  for  his 
life  and  the  tax  now  granted  him  shall  in  any  year  exceed 
the  ^"700,000,  then  no  more  than  that  sum  is  to  be  issued 
or  applied  to  any  use  or  purpose  without  the  authority  of 
parliament  (9  and  10  Will.  Ill,  c.  23).  A  somewhat  different 
arrangement  was  made  in  1700,  and  on  the  accession  of  Anne 
we  find  again  that  certain  sources  of  revenue  are  declared  to 
be  for  the  support  of  her  majesty's  household  and  the  honour 
and  dignity  of  the  crown.  These  are  in  the  main  such  as 
I  have  lately  mentioned,  the  old  prerogative  rights,  the  crown 
lands,  the  hereditary  excise,  and  certain  excise  and  customs 
duties  which  are  granted  to  Anne  during  her  life.  A  similar 
arrangement  was  made  on  the  accession  of  George  I,  but  with 
this  addition  that  besides  the  sources  of  revenue  thus  set  apart 
for  him,  he  was  to  have  a  further  sum  of  ;£i  20,000  for  the 
service  of  his  household  and  family,  and  his  necessary  expenses 

28 — 2 


436  Constitutional  History  PERIOD 

and  occasions.  This  sum  was  to  come  out  of  the  produce  of 
certain  taxes  which  were  to  be  massed  together  to  form  what 
was  to  be  called  '  the  aggregate  fund/  It  was  intended  that 
the  king  should  thus  have  at  his  command  an  income  of 
£700,000.  A  very  similar  arrangement  was  made  on  the 
accession  of  George  II,  but  parliament  promised  that  the  sum 
at  his  disposal  should  be  £800,000  per  annum.  On  the  ac- 
cession of  George  III  another  large  step  was  made,  for  the 
king  gave  up  for  his  life  the  greater  part  of  the  hereditary 
revenues  of  the  crown  including  the  crown  lands,  many  of 
the  minor  prerogatives  and  the  hereditary  excise.  In  return 
a  sum  of  £800,000  was  to  be  paid  to  him  yearly  out  of  '  the 
aggregate  fund/  In  1780,  however,  his  majesty  had  to  come 
to  parliament  for  the  payment  of  his  debts.  Parliament  in- 
sisted on  a  more  economical  management  of  what  had  come  to 
be  called  his  civil  list  revenues,  and  forbad  him  to  charge  them 
with  pensions  beyond  a  limited  amount.  It  divided  the  pay- 
ments that  were  to  be  made  out  of  such  revenues  into  eight 
classes ;  and  we  can  learn  from  the  act  in  question  that  these 
were  still  of  a  miscellaneous  nature:  the  second  consists  of 
the  salaries  of  the  judges,  the  third  of  the  salaries  of  the 
ambassadors,  the  fourth  of  tradesmen's  bills.  George  IV  again 
on  his  accession  gave  up  the  same  hereditary  revenues  that 
George  III  had  given  up.  In  return  he  was  to  have  £850,000 
out  of  what  had  now  become  the  Consolidated  Fund.  This 
sum  still  included  the  salaries  of  judges,  ambassadors,  com- 
missioners of  the  treasury ;  but  there  is  now  set  apart,  as 
what  is  to  be  the  king's  pocket-money  in  the  narrowest  sense, 
£60,000  per  annum.  William  IV  gave  up  what  his  brother 
had  given  up  and  he  gave  up  somewhat  more,  namely  the 
droits  of  the  admiralty  and  the  droits  of  the  crown  ;  in  return 
he  was  given  what  seems  much  less,  namely  £510,000  per 
annum ;  but  at  this  time  the  civil  list  was  relieved  of  the 
salaries  of  judges  and  ambassadors.  The  queen  again  gave 
up  what  her  uncle  had  given  up,  and  was  to  receive  £385,000  a 
year  out  of  the  Consolidated  Fund.  Besides  this  she  was 
given  a  power  of  granting  pensions  to  a  certain  limited 
amount — £1200  in  each  year. 

I  have  been  obliged  to  deal  with  these  details  in  order  to 


V        Surrender  of  Hereditary  Revenues    437 

explain  what  the  law  now  is  as  to  the  hereditary  revenues. 
If  the  queen  were  now  to  die  the  Prince  of  Wales  would 
become  entitled  to  these  revenues,  including  the  hereditary 
excise.  This  is  curious,  for  the  hereditary  excise  is  not  now 
collected.  As  an  expedient  for  raising  money,  it  has  long 
since  been  superseded.  But  when  William  IV  died,  the  queen 
immediately  became  entitled  to  it ;  the  officers  of  the  inland 
revenue  proceeded  to  collect  it,  and  had  not  the  queen  con- 
sented to  give  it  up,  it  would  be  collected  now  under  the  act 
of  Charles  II  which  abolished  the  military  tenures.  As  a 
matter  of  fact,  a  few  months  after  her  accession  she  gave 
her  consent  to  the  act  settling  a  revenue  upon  her,  and  that 
act  remitted  all  money  which  had  become  due  for  the  here- 
ditary excise.  If  the  Prince  of  Wales  now  came  to  the  throne 
this  would  happen  over  again :  what  he  would  be  entitled 
to  would  be  the  hereditary  revenue,  including  the  excise — a 
tax  which  would  have  to  be  collected  under  the  provisions 
of  the  act  of  1660,  12  Car.  II,  c.  24.  This  may  well  seem 
rather  absurd.  It  seems  as  if  parliament  had  considered  that 
a  king  could  not,  even  with  parliament's  concurrence,  deprive 
his  successors  of  their  hereditary  rights,  or  that  at  all  events 
it  would  not  be  fair  to  ask  a  king  to  do  it1. 

Practically,  then,  we  have  come  to  have  a  king  with  a 
salary.  The  sum  of  £385,000  was  to  be  paid  yearly  out  of 
the  Consolidated  Fund  for  the  purposes  of  the  civil  list,  but 
the  queen  has  had  and  still  has  a  limited  power  of  granting 
pensions  payable  out  of  the  Consolidated  Fund,  and  in  con- 
sequence of  the  exercise  of  this  power  the  civil  list  payments 
now  amount  to  something  more  than  £400000  a  year.  Even 
this  sum,  however,  is  to  a  certain  extent  appropriated  by  the 
act  passed  on  the  queen's  accession.  Thus,  for  example, 
£i  3 1,260  is  assigned  for  'salaries  of  her  majesty's  household  and 
retired  allowances/  Only  £60,000  is  allotted  to  H.M/s  privy 
purse,  and  we  may  say  that  this  is  the  only  sum  paid  by  the 
nation  to  the  jjtieen  over  which  she  has  an  absolutely  un- 
fettered power.  I  do  not  mean  that  this  is  all  that  the  queen 

1  By  the 'Civil  List  Act  of  1901  (i  Ed.  VII,  c.  4)  the  hereditary  revenues  were 
again  directed  to  be  paid  into  the  Exchequer  and  to  form  part  of  the  Consolidated 
Fund. 


438  Constitutional  History  PERIOD 

receives — she  holds,  for  instance,  the  Duchy  of  Lancaster, 
and  has  not  surrendered  the  revenue  arising  from  her  ducal 
rights,  and  it  may  be  that  there  are  some  minor  prerogatives 
of  the  crown  the  revenue  of  which  has  not  been  surrendered : 
the  revenue  derived  from  the  first-fruits  and  tenths  of  the 
clergy  has  long  been  given  up  (as  you  may  read  in  Blackstone) 
to  form  Queen  Anne's  bounty  for  the  augmentation  of  the 
maintenance  of  the  poorer  clergy.  Still  we  have  come  to  this, 
that  the  'royal  revenue/  using  that  phrase  in  its  large  sense,  is 
now  hard  on  ^"90,000,000  a  year,  out  of  which  less  than  half 
a  million  is  devoted  to  the  queen's  civil  list,  and  £60,000  to 
the  queen's  privy  purse.  And  yet  to  give  the  name  royal 
revenue  to  the  whole  ninety  millions  is  not  foolish.  All  of  it 
is  granted  by  parliament  to  the  queen,  though  appropriated 
to  particular  services  ;  none  of  it  comes  out  of  the  Exchequer 
without  a  warrant  under  the  queen's  sign  manual1. 

Let  us  now  take  a  brief  view  of  the  legal  aspect  of  the 
national  finance  at  the  present  day.  We  have  to  consider 
how  this  large  revenue  of  £90,000,000  is  obtained,  and  how  it 
is  spent.  First  a  few  words  about  the  Consolidated  Fund  and 
about  the  National  Debt.  Back  in  the  Middle  Ages  we  find 
our  kings  large  borrowers  ;  they  pledge,  or  profess  to  pledge, 
what  they  can ;  sometimes  the  proceeds  of  taxes  not  yet 
collected,  sometimes  the  crown  lands,  sometimes  the  crown 
jewels ;  in  the  days  of  Edward  I  and  Edward  II  some  of  the 
taxes  are  farmed  by  Italian  merchants.  Practically  in  the 
end  the  nation  has  to  pay;  this  is  one  of  the  king's  expedients 
of  practically  forcing  parliament  to  grant  him  money;  his 
debts  must  be  paid,  or  his  credit  among  foreigners  will  be 
ruined.  Under  Henry  VIII  parliament  does  a  scandalous 
thing:  it  declares  that  the  king  need  not  pay  his  debts.  At  all 
times  it  is  difficult  enough  to  get  money  from  the  king — one 
cannot  sue  him.  A  flagrant  case  occurs  under  Charles  II. 
The  London  goldsmiths  (the  goldsmiths  of  those  days  were 

1  The  revenue  raised  in  1912-3  was  over  153  millions.  By  the  Civil  List  Act 
of  1901  (i  Ed.  VII,  c.  4)  the  Civil  List  was  fixed  at  ^"470,000  appropriated  as 
follows:  Privy  Purse  ^110,000;  Salaries  of  Household  £125,800;  Expenses  of 
Household  £1 93,000;  Works  £20,000;  Royal  Bounty,  Alms  and  Special 
Services  £13,200;  Unappropriated  £8000. 


V  The  National  Debt  439 

also  the  bankers)  had  lent  Charles  about  £13,000,  and  he  had 
pledged  for  the  repayment  of  this  sum  part  of  his  revenue. 
Suddenly  the  Exchequer  was  shut  against  them.  It  was  not 
convenient  to  pay  them  their  principal;  they  must  be  content 
with  the  interest.  Perpetual  annuities  were  granted  to  them 
and  charged  on  the  hereditary  excise.  The  annuities  were 
paid  for  four  years  and  then  further  payment  ceased.  Even 
when  William  and  Mary  had  come  to  the  throne  it  was 
extremely  doubtful  whether  these  bankers  had  any  remedy 
except  by  petition  of  right,  and  to  that  remedy  they  could 
not  come  except  by  the  king's  fiat.  Thus  it  was  evident 
enough  that  if  money  was  to  be  borrowed  for  national 
purposes  upon  good  security,  that  security  must  be  some- 
thing other  than  the  king's  word,  or  the  king's  letters  patent 
In  1692  there  was  pressing  need  for  a  large  sum  for  the 
French  war,  and  in  that  year  it  is  usual  to  date  the  foundation 
of  a  national  debt,  a  debt  contracted  upon  the  security  of  act 
of  parliament.  A  million  was  to  be  borrowed.  New  duties 
were  to  be  imposed  for  ninety-nine  years  upon  beer  and  other 
liquors.  These  duties  when  collected  were  to  be  brought  into 
the  Exchequer  to  a  separate  account  and  were  to  form  a  fund 
for  paying  annuities  to  the  creditors.  Life  annuities  were  to 
be  granted  ;  each  subscriber  of  £100  was  to  have  an  annuity 
of  £10  (which  was  to  be  reduced  to  £7  in  1700)  for  life. 
But  there  was  an  element  of  gambling  in  the  transaction ;  as 
the  annuitants  died  their  annuities  were  to  be  divided  among 

o 

the  survivors  until  only  seven  should  be  left ;  after  that  what- 
ever fell  in  was  to  be  for  the  use  of  the  king.  The  act 
directed  the  officers  of  the  Exchequer  to  pay  the  annuities 
out  of  the  produce  of  the  tax  devoted  to  this  purpose,  gave 
an  action  for  treble  damages  against  any  officer  who  dis- 
obeyed the  act;  so  the  creditor  would  lend  no  longer  upon 
the  security  of  the  king's  word,  but  upon  the  security  of  an 
act  of  parliament.  You  will  observe  that  only  a  particular 
fund  was  pledged,  not  the  revenue  in  general,  only  certain 
excise  duties.  You  will  observe  also  that  the  lenders  were 
not  to  see  their  principal  again :  instead  of  this  they  took  life 
annuities  with  a  benefit  of  survivorship. 

Now  it  is  not  for  us  to  trace  the  growth  of  the  national 


440  Constitutional  History  PERIOD 

debt ;  enough  that  it  grew  rapidly ;  at  the  accession  of  Anne 
it  amounted  to  above  16  millions,  at  that  of  George  I  to 
above  54  millions,  at  the  Peace  of  Paris  in  1763  to  above 
138  millions.  During  the  peace  it  fell  to  128  millions,  during 
the  American  War  it  grew  to  249  millions  ;  in  1817  after  our 
long  wars  with  France  it  was  above  840  millions ;  it  has  since 
been  reduced  to  a  little  below  698  millions1.  But  during  the 
earlier  part  of  the  period,  over  which  I  have  just  ranged,  it 
would  be  more  correct  to  speak  of  the  national  debts  than 
of  the  national  debt  We  have  seen  that  in  1692  certain 
specific  taxes,  excise  duties,  were  imposed,  and  their  produce 
was  charged  with  the  payment  of  certain  annuities.  This 
device  was  repeated  over  and  over  again  in  a  manner  most 
perplexing  to  anyone  who  goes  to  the  statute  book  for  his 
information.  Often  the  return  given  to  the  lender  took  the 
form  of  a  perpetual  annuity,  payable  to  him,  his  executors, 
administrators,  or  assignees,  but  redeemable  at  any  time2. 
In  1752  (25  Geo.  II,  cap.  27)  two  great  masses  of  annuities 
charged  upon  various  taxes  were  consolidated  with  the 
consent  of  the  proprietors ;  the  taxes  on  which  they  were 
charged  were  to  be  carried  to  a  common  fund,  and  these 
various  annuities  were  to  be  paid  out  of  it.  The  annuities 
thus  consolidated  .came  to  be  known  as  the  consolidated  3  °/0 
bank  annuities,  and  the  consolidated  3|  °/0  bank  annuities. 

Other  measures  towards  simplifying  finance  were  taken 
at  various  times :  thus  the  produce  of  certain  taxes  was 
brought  into  one  fund  known  as  the  aggregate  fund ;  but 
still  the  whole  matter  was  enormously  complicated  until  1787 
(27  Geo.  Ill,  c.  13),  when  a  very  great  act  (very  great  in 
every  sense)  was  passed ;  a  very  large  part  of  the  revenue 
had  been  raised  by  indirect  taxes,  customs  duties  and  excise 
duties,  which  were  levied  under  a  vast  multitude  of  acts  of 
parliament;  these  were  swept  away  and  new  duties  were 
imposed  in  their  place.  But  all  or  most  of  the  old  duties 
had  been  pledged  for  the  payment  of  annuities ;  it  became 
necessary  to  provide  for  these.  The  whole  produce  of  the 

1  In  1912  the  Net  Debt  stood  at  ^"718,406,428. 

2  See  for  instance  12  Geo.  I,  c.  2. 


V  The  Consolidated  Ftmd  441 

new  taxes,  the  revenues  of  the  crown  lands  (which  George  III, 
as  you  will  remember,  had  surrendered),  the  revenue  of  the 
Post  Office,  in  short,  I  believe  that  I  am  right  in  saying,  almost 
all  that  could  be  called  royal  revenue  was  to  be  brought  into 
one  consolidated  fund,  and  out  of  this  the  various  annuitants 
were  to  be  paid.  Since  that  time  the  Consolidated  Fund  has 
been  the  central  point  of  English  finance;  whatever  is  received 
in  the  way  of  royal  revenue  forms  part  of  that  fund,  and 
statutes  direct  how  the  annuities  which  are  held  by  the  public 
creditors  shall  be  paid  out  of  that  fund.  A  similar  measure 
was  taken  in  Ireland,  and  in  1816  the  Consolidated  Fund  of 
Great  Britain  and  the  Consolidated  Fund  of  Ireland  were 
consolidated  into  the  Consolidated  Fund  of  Great  Britain 
and  Ireland. 

The  Consolidated  Fund  of  Great  Britain  is  then  the 
public  revenue  or  royal  revenue  of  Great  Britain,  as  collected 
under  the  laws  in  force  for  the  time  being.  No  creditor, 
therefore,  of  the  nation  can  say  that  he  has  any  legal  interest 
in  this  or  that  mode  of  taxation.  Taxes,  as  we  know,  are 
frequently  readjusted — an  old  duty  is  abolished — this  is  no 
breach  of  faith ;  he  trusts  that  parliament  will  always  keep 
sufficient  taxes  imposed  for  the  payment  of  his  annuity;  he 
trusts  that  parliament  will  not  repeal  (or,  if  it  repeals,  will 
substantially  re-enact)  the  laws  which  direct  that  his  annuity 
shall  be  paid  out  of  the  Consolidated  Fund  for  the  time  being. 

The  greater  part  of  our  national  debt  consists  of  perpetual 
but  redeemable  annuities.  The  person  who  had  ;£iooo  consols 
was  entitled  to  be  paid  £30  per  annum  for  ever ;  he  was  not 
entitled  to  be  paid  £1000 ;  but  the  queen  had  power  at  any 
time  to  redeem  the  annuity  by  paying  him  ^1000 — to  redeem 
the  debt  at  par.  The  full  title  of  what  we  briefly  call  £1000 
consols  is  a  sum  of  ^1000  consolidated  3  °/0  bank  annuities. 
It  was  this  power  of  redemption  which  enabled  the  Chancellor 
of  the  Exchequer  in  1888  to  reduce  (as  we  say)  the  interest 
on  the  national  debt ;  he  could  say  to  the  holders  of  these 
annuities  *  We  shall  redeem  you  by  paying  you  off  at  par,  or  if 
you  prefer  it  you  can  have  certain  new  annuities  which  will 
bring  you  in  2f  %  instead  of  3  %•'  These  are  'bank'  annuities 
because  the  Bank  of  England  is  charged  with  the  business  of 


442  Constitutional  History  PERIOD 

paying  them,  and  they  are  transferable  by  entry  in  books 
kept  by  the  bank.  Of  the  Bank  of  England  I  should  like  to 
say  more,  but  can  only  say  this,  that  though  it  is  a  banking 
corporation  composed  of  private  individuals,  so  that  you  or 
I  might  be  lucky  enough  to  be  members  of  it,  still  its  position 
is  unique.  In  return  for  extremely  valuable  privileges  granted 
to  it  by  charter  and  acts  of  parliament  it  has  come  under  a 
large  number  of  public  duties.  The  same  may  be  said  of  the 
Bank  of  Ireland.  Our  government  banks  with  these  banks. 
The  various  commissioners  who  are  charged  with  the  duty  of 
collecting  the  taxes,  pay  what  they  collect  into  an  account  at 
these  banks  called  'The  account  of  Her  Majesty's  Exchequer/ 
Sums  sufficient  to  meet  the  payments  becoming  due  from  the 
Consolidated  Fund  to  the  national  creditors  are  drawn  from 
this  account  and  paid  to  the  chief  cashier,  who  is  bound  to 
see  to  the  payment.  This  operation  involves  the  action  of 
the  Treasury  and  of  the  Comptroller  and  Auditor-General, 
but  no  act  of  parliament,  no  vote  of  the  House  of  Commons, 
is  required. 

A  word  of  explanation  as  to  the  terms  funded  and  un- 
funded debt.  Debt  is  funded  when  the  indebted  nation  is  not 
under  any  obligation  to  pay  the  principal  of  the  debt,  but  is 
merely  bound  to  pay  the  interest  for  ever,  or  until  it  chooses 
to  pay  the  debt.  The  man  who  has  ,£100  of  our  debt  has 
no  right  to  £100  in  cash;  he  has  a  right  to  £2.  i$s.  per 
annum  for  ever,  subject  to  the  nation's  right  to  pay  him 
£100  and  so  extinguish  his  annuity.  The  holder  is  liable 
to  be  paid  off  at  a  year's  notice.  Any  vote  or  resolution  of 
the  House  of  Commons  signified  by  the  Speaker  in  writing 
inserted  in  the  London  Gazette  and  affixed  on  the  Royal 
Exchange  in  London,  shall  be  deemed  sufficient  notice.  But 
besides  the  funded  debt  there  is  always  a  certain  amount  of 
unfunded  debt.  Money  is  borrowed  upon  what  are  called 
exchequer  bills  for  short  and  definite  times,  and  under  these 
the  creditor  is  entitled  to  receive  his  principal  at  a  certain 
time  and  meanwhile  to  receive  interest. 

Now  let  us  look  at  the  revenue  which  forms  the  Con- 
solidated Fund.  It  is  hard  on  ninety  millions.  By  far  the 
greater  part  of  it  consists  of  the  produce  of  taxes  and  govern- 


V  The  National  Revenue  443 

ment  monopolies.  Less  than  half-a-million  comes  from  the 
crown  lands ;  there  are  the  dividends  on  shares  in  the  Suez 
Canal,  and  there  are  certain  miscellaneous  receipts ;  but  the 
great  sources  of  revenue  are  taxes  and  monopolies.  I  say 
'and  monopolies/  for  about  ^9,000,000  come  from  the  Post 
Office,  and  the  Post  Office,  as  our  Cambridge  colleges  have 
lately  been  reminded,  has  a  monopoly  of  carrying  letters. 
The  .great  heads  of  revenue  are  customs  producing  about 
twenty  millions,  excise  twenty-five  millions,  stamps  twelve 
millions,  income-tax  twelve  millions,  house-tax  and  land-tax 
near  three  millions1.  Now  by  far  the  greater  part  of  this  large 
sum  is  raised  under  permanent  acts  of  parliament.  It  requires 
no  annual  act.  If  parliament  had  not  sat  this  year  it  would 
still  have  been  levied.  If  you  take  up  any  recent  volume  of 
statutes  you  will  find  that  only  a  small  part  of  the  existing 
burden  of  taxation  is  imposed  by  anything  in  that  book.  I 
think  that  at  present  there  are  only  two  taxes  which  would 
come  to  an  end  if  an  act  of  parliament  did  not  reimpose  them, 
namely,  the  income-tax  and  a  duty  on  tea.  All  the  taxing 
that  parliament  now  does  in  any  one  year  is  generally  done  by 
a  single  act.  I  have  the  act  of  1885  before  me.  It  is  a  short 
act  It  continues  for  one  year  a  customs  duty  on  tea  at  the 
rate  of  6d.  per  Ib.  It  makes  a  few  alterations  in  the  permanent 
excise  duties.  It  imposes  the  income-tax  for  one  year  at  the 
rate  of  8</  in  the  pound.  It  imposes  an  entirely  new  tax 
upon  the  property  of  corporations.  All  this  can  be  done  by 
a  few  brief  sections.  The  machinery  for  collecting  taxes  is 
permanent.  There  are  commissioners  of  customs  at  the  head 
of  one  department,  commissioners  of  inland  revenue  at  the 
head  of  another;  the  manner  in  which  taxes  are  to  be  assessed 
and  collected,  the  duties  of  excise  officers  and  customs  officers 
are  set  forth  in  permanent  acts.  It  is  a  simple  thing  to  say 
that  for  yet  another  year  a  customs  duty  of  6d.  per  Ib.  shall 
be  charged  on  tea ;  that  the  income-tax  shall  be  levied  at 
this  or  that  rate.  But  what  it  is  most  desirable  to  understand 

1  Nearly  145  millions  was  raised  for  the  financial  year,  1907-8.  The  chief 
heads  of  revenue  (in  millions)  were  :  Customs  32;  Excise  30;  Stamps  7 j;  Income 
Tax  31 ;  Estate  Duty  1 4 ;  Post  Office  1 7 ;  House  Duty  and  Land  tax  2  J;  Telegraph 
Service  4. 


444  Constitutional  History  PERIOD 

is  that  parliament  does  not  annually  vote  the  taxes.  If 
parliament  never  sat  again,  still  under  acts  of  parliament 
now  in  force  a  great  quantity  of  taxes  would  be  collected ; 
the  commissioners  of  inland  revenue,  the  commissioners  of 
customs,  the  postmaster-general,  would  continue  to  pay  in  vast 
sums  of  money  to  the  account  of  her  majesty's  exchequer. 

And  money  would  flow  out  of  the  Exchequer  also,  to  the 
amount  of  something  like  twenty-five  millions  a  year1.  Under 
permanent  acts  of  parliament  certain  payments  become  due 
from  the  Consolidated  Fund,  and  there  are  officers  charged 
with  the  duty  of  seeing  that  these  are  paid.  By  far  the 
greatest  item  here  consists  of  the  interest  on  the  national 
debt ;  this  would  be  paid  though  parliament  never  sat ;  then 
there  is  the  queen's  civil  list,  and  a  mass  of  judicial  and  other 
salaries  which  parliament  has  made  permanently  payable.  It 
has  been  thought  undesirable  that  the  question  whether 
Mr  Justice  A.B.,  or  the  comptroller  and  auditor-general,  shall 
be  paid  his  salary,  should  be  annually  submitted  to  a  vote. 
On  the  other  hand  it  has  been  the  policy  of  late  years  not  to 
charge  upon  the  Consolidated  Fund  the  salary  of  any  executive 
officer  or  the  cost  of  any  government  office,  but  to  bring  all 
such  matters  annually  under  the  review  of  parliament. 

No  payment  can  be  made  out  of  the  Consolidated  Fund 
without  the  authority  of  an  act  of  parliament  Some  payments, 
as  we  have  just  seen,  including  the  large  item  of  interest  on 
the  debt,  are  provided  for  by  permanent  acts.  And  now  as 
to  other  payments.  These  are  provided  for  by  acts  which 
grant  supply  to  the  queen,  and  then  appropriate  the  supply 
so  granted.  The  form  of  a  supply  act  is  this:  'We,  your 
Majesty's  most  dutiful  and  loyal  subjects,  the  Commons 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  in 
Parliament  assembled,  towards  making  good  the  supply  which 
we  have  cheerfully  granted  to  your  Majesty  in  this  session  of 
Parliament,  have  resolved  to  grant  to  your  Majesty  the  sum 
hereinafter  mentioned,  and  do  therefore  humbly  beseech  your 
Majesty  that  it  may  be  enacted,  and  be  it  enacted  by  the 
Queen's  most  Excellent  Majesty  by  and  with  the  consent  and 
advice  of  the  Lords  Spiritual  and  Temporal  and  Commons  in 

1  Now  (1913)  over  36  millions. 


V  The  Appropriation  Act  445 

this  present  Parliament  assembled,  and  by  the  authority  of 
the  same  as  follows:  The  Commissioners  of  her  Majesty's 
Treasury  for  the  time  being  may  issue  out  of  the  Consolidated 
Fund  and  apply  towards  making  good  the  supply  granted  to 
her  Majesty  for  the  service  of  the  year  ending  31  March,  1886, 
the  sum  of  £45,361,227.'  The  appropriation  clause  takes  this 
form :  '  All  sums  granted  by  this  act  are  appropriated  for 
the  purposes  and  services  expressed  in  the  schedule  annexed 
hereto.1  Turning  to  the  schedule  we  find  that  the  appropriation 
is  pretty  minute.  There  are  sums  great  and  small.  These 
are  instances : 

For  wages,  etc.,  to  59,000  seamen  and  marines..,  ,£2,728,100 
For  the  expense  of  dockyards  and  naval  yards 

at  home  and  abroad  £1,639,300 

For  the  volunteer  corps'  pay  and  allowances  ...  £606,000 
For  the  maintenance  and  repair  of  Maryborough 

House  £7,120 

For  the  cost  of  erecting  a  monument  to  the  late 

Major-General  Charles  George  Gordon  ...  £500 

For  her  majesty's  foreign  and  other  secret  services  £50,000 

Now  observe  first  that  this  is  supply  granted  to  the  queen ; 
none  of  it  will  go  out  of  the  Exchequer  without  the  sign 
manual,  and  the  warrant  of  the  Commissioners  of  the  Treasury. 
Parliament  does  not  grant  money  to  the  seamen  and  marines, 
or  to  the  sculptor  who  makes  a  monument  to  General  Gordon. 
Of  course  all  this  might  be  done,  but  it  is  not  done ;  it  is 
thought  very  undesirable  that  it  should  be  done.  Money  is 
granted  to  the  queen  ;  it  is  placed  at  the  disposal  of  her  and 
her  ministers.  But  she  and  they  are  not  bound  by  law  to 
spend  it,  at  least  not  bound  by  the  Appropriation  Act.  Of 
course  if  the  queen's  advisers  withdrew  all  ambassadors  from 
foreign  courts,  or  disbanded  the  navy  or  the  like,  they  might 
be  severely  blamed  and  possibly  they  might  be  impeached. 
But  statute  does  not  say  to  the  queen  '  You  shall  spend  so 
much  on  your  embassies,  so  much  on  your  navy.'  Rather  its 
language  is:  'Here  is  money  for  this  purpose  and  for  that; 
spend  it  if  you  please ;  we  trust  the  discretion  of  your 
advisers  ;  the  account  of  the  expenditure  will  be  presented 


446  Constitutional  History  PERIOD 

to  us,  and  votes  of  censure  may  follow.  This,  however,  applies 
only  to  expenditure  within  the  limits  laid  down  by  the  act : 
here  is  two  and  a  quarter  millions  for  warlike  stores,  £100,000 
for  the  royal  parks,  one  hundred  guineas  for  expenses  con- 
nected with  the  observation  of  the  transit  of  Venus  ;  if  more 
is  drawn  out  for  any  of  these  purposes,  someone  will  have 
committed  a  crime,  indeed  in  all  probability  several  persons 
will  have  conspired  to  commit  a  crime1/  I  may  here  remark 
that  soldiers,  sailors,  and  civil  servants  are  servants  of  the 
queen  and  of  no  one  else,  generally  dismissible  at  a  moment's 
notice  and  without  cause  assigned.  The  pay,  salaries,  pensions, 
for  which  they  serve,  are  paid  to  them  on  behalf  of  the  queen, 
and  at  least  in  general  they  can  bring  no  action  for  their  pay 
against  the  queen's  ministers;  the  contract  is  with  the  queen, 
and  the  remedy  on  it  is  a  petition  of  right.  The  fact  that 
parliament  has  voted  a  supply  to  the  queen  for  the  payment 
of  such  salaries  or  pensions  does  not  give  them  a  remedy 
against  the  lords  of  the  treasury  or  the  secretaries  of  state 
who  are  charged  with  the  expenditure.  No  one  can  say, 
*  Under  the  Appropriation  Act,  the  secretary  of  state  for  war, 
or  the  lords  of  the  admiralty,  have  received  money  which  they 
hold  upon  trust  for  me/ 

In  speaking  of  the  grant  and  appropriation  of  supplies 
I  have  somewhat  unduly  simplified  the  course  of  business. 
Only  one  Appropriation  Act  is  passed  in  each  year,  and  that 
near  the  end  of  the  session ;  that  provides  for  the  whole 
estimated  expenditure  of  the  then  current  year.  But  before 
the  whole  of  the  estimates  can  be  considered  it  often  is 
necessary  that  the  queen  should  have  money.  Early  in  the 
session  the  House  of  Commons  forms  itself  into  a  committee 
of  supply  and  begins  going  through  the  estimates.  The 
minister  in  charge  of  the  business  proposes  grants  one  by 
one,  as,  for  instance,  that  a  sum  not  exceeding  £10,000  be 
granted  to  her  majesty  for  the  object  specified  in  the  estimate. 

1  This  is  emphasized  by  a  now  usual  clause,  which  empowers  the  treasury  in 
case  of  necessity  to  use  money  appropriated  to  one  military  purpose  for  another 
military  purpose.  In  1883-4  advantage  was  taken  of  this;  an  act  of  1 885  declares 
that  what  was  done  was  lawful.  On  the  other  hand  even  at  a  pinch  money 
appropriated  to  the  navy  cannot  be  applied  to  the  army.  F.  W.  M. 


V  Method  of  voting  Supplies  447 

The  House  also  forms  itself  into  a  committee  of  ways  and 
means  and  therein  considers  how  the  supply  thus  voted  shall 
be  raised :  it  votes  that  so  much  money  be  granted  out  of  the 
Consolidated  Fund  towards  making  good  the  supply  voted 
to  her  majesty.  This  resolution  is  then  embodied  in  a  bill 
passed  early  in  the  session.  For  instance  I  take  up  the  statutes 
of  1885.  On  the  28th  of  March  an  act  obtains  the  royal 
assent ;  it  states  that  the  Commons  towards  making  good  the 
supply  voted  to  Her  Majesty  have  granted  the  sum  hereinafter 
mentioned,  and  that  it  is  enacted  by  Queen  and  Parliament 
that  the  Commissioners  of  the  Treasury  may  issue  out  of  the 
Consolidated  Fund  and  apply  towards  making  good  the  supply 
voted  to  Her  Majesty  for  the  year  ending  31  March,  1886,  a 
sum  of  ten  millions  odd.  The  act  contains  no  further  words 
of  appropriation ;  merely  says  that  the  Commissioners  of  the 
Treasury  may  apply  this  sum  towards  making  good  the  supply 
that  has  been  voted  :  this  supply  however  has  been  voted,  as 
I  have  already  described,  for  specific  purposes.  On  21  May 
another  act  of  the  same  kind  is  passed  granting  another 
thirteen  millions.  On  14  August  we  have  the  Appropriation 
Act.  It  grants  another  forty-five  millions.  Then  it  proceeds 
to  appropriate  the  whole  of  these  three  sums  of  ten,  thirteen, 
forty-five  millions,  and  it  appropriates  them  retrospectively.  It 
says  that  all  sums  granted  by  the  two  acts  of  March  and  May, 
and  the  present  act,  are  appropriated  and  shall  be  deemed  to 
have  been  appropriated  as  from  the  date  of  the  passing  of 
the  first  of  those  acts,  for  the  purposes  expressed  in  the 
schedule  to  the  present  act.  This,  however,  is  rather  a  detail 
of  business. 


E.     The  Military  System. 

We  have  traced  the  legal  history  of  our  military  system 
down  to  the  reign  of  William  III.  From  that  time  onward  it 
becomes  the  history  of  an  act  passed  in  every  year — known 
as  the  Annual  Mutiny  Act — an  act  legalizing  the  existence  of 
a  standing  army  consisting  of  a  certain  specified  number  of 
men  for  one  year  more.  The  practice  of  passing  a  whole 
Mutiny  Act  in  every  year  was  continued  until  1879.  In  that 


448  Constitutional  History  PERIOD 

year  an  act  of  a  different  kind  was  passed  and  in  1881  a  new 
edition  of  this  act  was  passed.  This  act  of  1881 — the  Army 
Act  of  1 88 1 — now  governs  the  army.  But  it  is  an  act  of  a 
very  peculiar  character — it  always  requires  another  act  to 
keep  it  in  force — and  in  every  session  of  parliament  a  brief 
act  is  passed  renewing  the  act  of  1881.  This  was  but  a 
change  in  parliamentary  procedure,  the  principle  is  still  pre- 
served that  the  army  shall  be  legalized  only  from  year  to 
year. 

I  have  said  that  the  legal  history  of  the  British  army 
from  the  days  of  William  III  to  the  present  time  is  chiefly 
the  history  of  these  annual  mutiny  acts.  We  sometimes  talk 
about  the  Mutiny  Act  being  re-enacted,  but  do  not  be  deceived 
by  this  into  thinking  that  the  same  act  was  passed  year  after 
year.  The  acts  grow  and  grow  in  bulk,  and  become  always 
minuter  and  more  precise.  The  first  Mutiny  Act  is  a  trifling 
little  thing.  I  think  that  I  have  stated  to  you  the  whole  of 
its  sum  and  substance.  The  act  of  1881  is  a  vast  code,  has 
193  sections  and  takes  up  more  than  60  octavo  pages.  Now 
to  trace  this  process  of  growth  would  take  a  very  long  time; 
I  can  only  ask  your  attention  to  a  few  salient  points.  In  the 
first  place  we  always  have  the  solemn  recitals  'Whereas  the 
keeping  of  a  standing  army  in  time  of  peace  within  the  United 
Kingdom  of  Great  Britain  and  Ireland  without  the  consent  of 
parliament  is  against  law/  'And  whereas  no  man  can  be 
forejudged  of  life  and  limb,  or  subjected  in  time  of  peace  to 
any  kind  of  punishment  within  this  realm  by  martial  law,  or 
in  any  other  manner  than  by  the  judgment  of  his  peers  and 
according  to  the  known  and  established  laws  of  the  realm/ 
The  words  'in  time  of  peace*  in  this  last  recital  were  not  in 
the  earliest  mutiny  acts ;  their  presence  certainly  seems  to 
suggest  that  in  time  of  war  the  subjects  of  this  realm  might 
be  punished  by  something  called  martial  law.  That  is  a 
point  to  which  I  shall  return.  As  to  the  judgment  of  one's 
peers,  that  I  think  has  become  sorry  old  nonsense.  A  subject 
of  this  realm  can  be  sent  to  prison  by  one  stipendiary 
magistrate — I  fail  to  see  how  he  gets  the  judgment  of  his 
peers  in  any  sense  in  which  he  would  not  get  it  were  he  tried 
by  court  martial. 


V  The  Army  Act  449 

Then  the  modern  acts  specify  the  precise  number  of 
soldiers  that  may  be  kept.  It  is  adjudged  necessary  by  the 
queen  and  parliament  that  a  body  of  forces  should  be 
continued  for  the  safety  of  the  United  Kingdom  and  the 
defence  of  the  possessions  of  Her  Majesty's  Crown  and  that 
the  whole  number  of  such  forces  should  consist  of  142,194 
men.  The  queen,  I  take  it,  is  not  in  the  least  bound  to  keep 
that  number ;  it  is  a  maximum. 

Next  we  will  notice  that  the  act  expressly  empowers  the 
queen  to  make  Articles  of  War  for  the  better  government  of 
officers  and  soldiers.  The  act  does  not  constitute  by  any 
means  the  whole  of  our  military  code-  -there  is  besides  a 
large  body  of  Articles  of  War.  If  you  wish  for  an  example 
(I  have  before  this  mentioned  otheis)  of  delegated  legislative 
powers  I  know  of  no  better  than  this— for  the  queen  is 
empowered  to  legislate  for  the  better  government  of  officers 
and  soldiers  and  she  can  create  new  offences.  But  the  act 
goes  on  to  mark  the  limit.  No  person  by  such  articles  is  to 
be  subject  to  any  punishment  extending  to  life  or  limb,  or 
to  be  kept  in  penal  servitude,  except  for  crimes  which  are 
by  this  act  expressly  made  subject  to  such  punishment  as 
aforesaid  or  be  subject,  with  reference  to  any  crimes  made 
punishable  by  this  act,  to  be  punished  in  any  manner  which 
does  not  accord  with  the  provisions  of  this  act.  Now  probably 
there  is  a  certain  (or  I  had  better  say  uncertain)  prerogative 
power  for  making  articles  for  the  government  of  the  army. 
The  earlier  Mutiny  Acts  only  deal  with  mutiny  and  similar 
crimes,  crimes  which  they  punish  with  deaih,  but  during  the 
reigns  of  William  and  Anne  Articles  of  War  were  issued 
dealing  with  minor  offences,  and  the  legality  of  these  seems 
to  have  been  admitted  by  parliament.  What  the  limit  to  the 
prerogative  power  was  supposed  to  be  I  am  not  certain, 
probably  life  and  limb.  Historically,  as  it  seems  to  me,  there 
are  difficulties  in  drawing  any  line.  The  annual  acts  protested 
that  no  man  should  be  subjected  to  any  kind  of  punishment 
by  martial  law — if  the  king  could  order  that  drunkards  be 
flogged,  why  not  that  mutineers  be  hanged?  In  the  act  of 
3  George  I,  however,  the  king  was  expressly  empowered  to 
make  articles  ior  the  better  government  of  his  forces  as  well 
M.  29 


450  Constitutional  History  PERIOD 

within  the  realm  as  without,  and  to  inflict  pains  and  penalties 
to  be  pronounced  by  courts  martial.  This  became,  I  believe, 
a  standing  clause  in  the  act.  Gradually  parliament  expressly 
dealt  with  more  and  more  offences,  going  always  into  smaller 
details,  and  thus  in  effect  the  scope  of  Articles  of  War  was 
limited — for  it  was  established  as  early  as  1728  that  the  king 
could  not  impose  by  articles  a  graver  punishment  than  that 
which  the  Mutiny  Act  had  imposed.  Also  the  king  was 
advised  by  his  law  officers  in  1727  that  he  could  not  commute 
the  sentence  pronounced  by  a  court  martial  under  the  act 
— could  not  substitute  flogging  for  death. 

Now  though  an  express  power  of  making  articles  is  given 
by  the  annual  acts  this  would  not  take  away  any  previously ' 
existing  prerogative ;  so,  on  the  whole,  we  ought  probably  to 
believe  that  when  parliament  has  legalized  a  standing  army, 
has  said  that  the  queen  may  keep  soldiers  in  her  pay,  she  has, 
if  nothing  more  be  said,  a  power  of  making  regulations  for 
their  government,  a  power  extending  to  the  denunciation 
of  punishments  short  of  life  and  limb.  The  modern  acts, 
however,  give  her  expressly  a  power  which  is  more  limited ; 
her  articles  may  not  inflict  penal  servitude  or  vary  the  punish- 
ments for  the  many  offences  for  which  the  act  itself  provides. 

As  to  what  these  offences  are  I  cannot  go  into  many 
particulars.  There  are  a  considerable  number  of  offences  for 
which  death  may  be  inflicted.  For  instance,  anyone  who 
'  misbehaves  or  induces  others  to  misbehave  before  the  enemy 
in  such  a  manner  as  to  show  cowardice'  may  be  sentenced  to 
death.  Some  offences  there  are  which  are  punishable  with 
death  if  committed  while  on  active  service,  but  are  not  so 
punishable  if  committed  in  other  circumstances.  Desertion 
is  a  case  in  point;  anyone  who,  while  on  active  service, 
deserts  or  attempts  to  desert  can  be  sentenced  to  death. 
Anyone  who  deserts  while  not  on  active  service  can  get  no 
severer  punishment  than  imprisonment.  As  to  disobedience 
the  rules  are  these :  he  who  disobeys,  in  such  a  manner  as  to 
show  a  wilful  defiance  of  authority,  any  lawful  command  given 
personally  by  his  superior  officer  in  the  execution  of  his  office, 
is  liable  to  suffer  death;  he  who  disobevs  any  lawtul  command 
given  by  his  superior  officer  is  liable,  if  he  commits  the  ofience 


V  Legal  Position  of  Soldiers          451 

while  on  active  service,  to  penal  servitude,  if  otherwise  to 
imprisonment.  The  punishments  which  can  be  inflicted  are 
death,  penal  servitude  for  five  years,  imprisonment  for  two 
years,  for  officers  cashiering,  for  soldiers  discharge  with 
ignominy,  forfeiture,  fines,  stoppages.  Flogging  has  lately 
disappeared  ;  a  maximum  punishment  of  300  lashes  was  fixed 
in  1812,  cf  200  lashes  in  1832,  in  1867  it  was  confined  to  a  few 
offences,  in  i8£  3  it  was  abolished  altogether  in  time  of  peace. 
In  the  act  of  3Q.7Q  it  appears  for  the  last  time — 25  lashes  may 
be  inflicted  for  certain  offences  if  committed  on  active  service. 
It  is  not  to  be  found  in  the  act  of  1881. 

Hitherto  we  have  been  dealing  with  what  we  may  call 
military  offences.  Now  as  to  other  offences,  crimes  against 
the  general  Lrxr  of  the  land,  the  policy  of  these  acts  has  for 
a  long  time  past  been  not  to  exempt  the  soldier  from  the 
ordinary  rules  and  the  ordinary  processes  of  the  law.  You 
may  have  noticed  this  when  I  was  speaking  of  the  first  of  all 
the  Mutiny  Acts.  The  principle  is  laid  clown  broadly  in  what 
is  now  the  standing  act.  'A  person  subject  to  military  law 
when  in  his  majesty's  dominions,  may  be  tried  by  any 
competent  civil  court  for  any  offence  for  which  he  would  be 
triable  if  he  were  not  subject  to  military  law/  What  is  more, 
lie  can  seldom  be  tried  by  court  martial  for  an  offence  against 
the  ordinary  civil  law — never  within  the  United  Kingdom  ;  but 
outside  the  United  Kingdom,  and  if  more  than  a  hundred  miles 
from  any  town  in  which  there  is  a  competent  civil  court,  he 
may  be  tried  for  treason,  treason-felony,  murder,  manslaughter 
or  rape.  When  the  jurisdictions  of  courts  martial  and  ordinary 
courts  overlap,  the  fact  that  the  offender  has  been  punished 
under  the  military  law  is  no  bar  to  criminal  proceedings 
against  him,  but  the  court  is  ordered  to  take  his  previous 
military  punishment  into  consideration  when  awarding  sen- 
tence. As  regards  debts  and  other  civil  causes  of  action,  one 
can  sue  a  soldier  and  have  execution  against  his  property,  but 
his  person  is  exempt  unless  the  sum  due  be  above  £30.  This 
does  not  mean  very  much,  now  that  imprisonment  for  debt 
has  been  abolished. 

The  act  contains  elaborate  rules  as  to  the  constitution 
of  courts  martial ;  their  procedure  is  for  the  most  part  left 

29 — 2 


452  Constitittional  History  PERIOD 

to  regulations  made  by  the  queen  and  signed  by  a  secretary 
of  state.  The  act,  however,  provides  how  a  prisoner  may 
challenge  his  judges,  and  provides  also  that  the  ordinary 
English  rules  of  evidence  shall  be  observed. 

One  great  branch  of  the  act  then  deals  with  these  matters 
and  the  like.  It  enacts  a  military  penal  code,  and  provides 
special  courts  for  enforcing  that  code.  Another  laige  branch 
deals  with  billeting  and  the  impressment  of  c  rriages.  Billet- 
ing has  been  found  necessary,  and  year  by  tFcar  the  section 
about  it  in  the  Petition  of  Right  is  solemnly  suspended.  But 
the  burden  is  not,  I  think,  very  heavy.  Soldiers  can  only 
be  billeted  on  those  whom,  roughly  speaking,  one  may  call 
keepers  of  public-houses — victualling  houses  is  the  statutory 
word.  The  prices  to  be  paid  for  accommodation  are  fixed 
from  time  to  time  by  parliament,  and  the  act  goes  into  detail; 
indeed  it  chronicles  small  beer,  for  not  more  than  two  pints 
thereof  need  be  provided  for  any  soldier  per  diem.  So  carriages, 
carts,  horses  may  be  impressed  for  the  transport  of  regimental 
baggage,  all  to  be  practically  paid  for  at  parliamentary  rates. 

There  is  a  third  great  branch  of  the  act  which  deals  with 
enlistment  Now  parliament  for  a  long  time  left  the  king  to 
make  what  terms  he  pleased  with  his  soldiers.  Gradually, 
however,  clauses  as  to  enlistment  make  their  way  into  the 
Mutiny  Acts.  Their  object  was  to  provide  that  the  recruit 
should  really  understand  what  he  was  about,  and  not  sell 
himself  half-drunk  into  a  life-long  service.  Similar  clauses 
appear  still  ;  the  recruit  must  be  taken  before  a  justice  of  the 
peace,  sign  a  declaration  and  so  forth.  But  of  late  parliament 
has  interfered  with  the  terms  of  the  enlistment  in  order  to 
carry  out  a  policy  of  short  service.  The  act  of  iSSi  says 
that  a  person  may  be  enlisted  for  a  period  of  twelve  years,  or 
for  such  less  period  as  may  be  from  time  to  time  fixed  by  the 
queen,  but  not  for  any  longer  period.  There  are  also  clauses 
providing  for  passing  men  into  the  reserve.  This  reserve  'it 
shall  be  lawful  for  Her  Majesty  in  council '  to  call  out,  '  in  case 
of  imminent  national  danger  or  of  great  emergency  by  procla- 
mation, the  occasion  being  first  communicated  to  parliament 
if  parliament  be  then  sitting,  or  if  parliament  be  not  then 
sitting,  declared  by  the  proclamation/  But  though  the  soldier 


V  Impressment  453 

engages  for  a  term  of  years,  the  queen  is  not  bound  to  keep 
him  for  that  term,  he  can  always  be  dismissed  without  cause 
assigned;  this  applies  to  all  officers  and  soldiers  alike  from  the 
general  commanding  in  chief  downwards. 

It  is,  I  believe,  a  common  mistake  that  since  the  Revolution 
we  have  no  such  thing  as  impressment  or  conscription  for  the 
army.  Of  course  no  permanent  law  provided  for  it,  because 
there  was  no  permanent  law  for  the  army.  Also  it  is  true  that 
this  means  of  raising  a  force  was  only  made  lawful  in  times  of 
war,  and  was  applied  in  a  limited  way.  But  in  the  first  place  it 
was  at  times  applied  to  insolvent  debtors.  Imprisoned  debtors 
were  discharged  on  condition  of  their  enlisting  or  finding  a  sub- 
stitute. This  seems  to  have  been  done  on  many  occasions  during 
the  eighteenth  century.  Then  again  convicted  criminals  were 
released  upon  condition  of  their  enlisting.  This  was,  I  believe, 
done  until  the  end  of  the  Peninsular  War.  Thirdly,  conscription 
was  applied  to  the  pauper  class.  In  1703  justices  are  to  raise 
and  levy  such  able-bodied  men  as  have  not  any  lawful  calling 
or  employment,  or  visible  means  for  their  maintenance  or 
subsistence,  and  hand  them  over  to  the  officers  of  the  queen's 
forces.  Similar  acts  were  passed  during  the  reigns  of 
George  II  and  George  III,  the  persons  liable  to  be  iiji pressed 
were  'all  such  able-bodied,  idle  and  disorderly  persons,  who 
cannot  upon  examination  prove  themselves  to  exercise  and 
industriously  follow  some  lawful  trade  or  employment,  or  to 
have  some  substance  sufficient  for  their  support  and  main- 
tenance.' I  believe  that  clauses  directing  the  impressment  of 
able-bodied  paupers  were  in  force  until  1780.  A  British  army 
of  the  eighteenth  century  must  have  been  largely  composed  of 
bad  characters,  insolvent  debtors,  criminals,  idle  and  disorderly 
persons.  The  army  was  never  popular ;  the  soldiers,  as  a 
class,  were  despised.  For  a  long  time  past  we  have  depended 
for  supplies  of  men  upon  voluntary  enlistment. 

Now  under  the  acts  of  parliament,  and  within  the  limits 
which  they  set,  the  command,  government,  disposition  of  the 
army  is  in  the  queen.  Probably  it  is  within  this  military 
sphere  that  the  personal  will  of  the  king  has  been  most 
efficacious  within  what  we  may  call  recent  times.  Even  to 
this  day  a  very  great  mass  of  military  business  is,  I  believe, 


454  Constitutional  History  PERIOD 

brought  under  the  queen's  own  notice,  and  her  sign  manual  is 
required  for  many  purposes.  But  down  to  1793  there  was  no 
Commander-in-chief,  or  rather  the  king  himself  really  and 
truly  commanded  the  army.  A  general  might  be  appointed 
fora  time  to  conduct  a  campaign  on  the  continent;  but  the 
true  head  of  the  army  was  the  king.  What  led  to  the 
appointment  of  a  Commander-in-chief  was,  it  seems,  the  use 
for  political  ends  of  the  king's  power  of  appointing  and 
dismissing  officers.  It  was  thought  that  in  such  matters  he 
ought  to  act  on  the  advice  of  one  who  was  primarily  a  soldier, 
and  who  stood  outside  party  politics.  On  the  other  hand  the 
disposition,  the  general  administration  of  the  army  has  always 
been  falling  more  and  more  into  the  hands  of  a  political 
minister,  a  member  of  parliament  and  of  the  cabinet  This  is 
a  particularly  complex  piece  of  history,  and  I  must  shirk  it. 
Until  the  beginning  of  the  Crimean  War  responsibility  was  much 
divided  between  a  Secretary  at  War,  who  was  not  a  Secretary  of 
State,  and  the  Secretaries  of  State.  At  that  time  the  office  of 
Secretary  of  State  for  War  was  created,  and  a  few  years  after- 
wards the  much  older  office  Secretary  at  War  was  abolished. 
The  legal  necessity  of  his  counter-signature  as  an  authentica- 
tion of  the  queen's  orders,  even  when  such  orders  are  addressed 
to  the  Commander-in-chief,  secures  that  his  advice  shall  be 
taken  in  all  matters  relating  to  the  disposition  of  the  forces, 
and  he  has  to  answer  in  parliament  for  the  advice  he  gives. 
The  Commander-in-chief  is  trusted  with  a  large  power  as  to 
the  discipline  of  the  forces,  appointment  and  promotion. 
A  political  minister  ought  not,  it  is  thought,  to  interfere  with 
these  matters  ;  but  the  highest  appointments,  the  command  in 
chief  on  foreign  service,  have  the  approval  of  the  Secretary  of 
State,  and  in  important  cases  become  'cabinet  questions/  As 
to  the  employment  of  troops  in  war,  I  believe  we  may  safely 
say  that  the  Secretary  of  State  must  always  become  responsible 
for  this,  and  that  his  signature  is  legally  necessary.  But  the 
relations  between  the  Horse  Guards  and  the  War  Office  are 
delicate  and  intricate,  and  I  cannot  pretend  to  have  studied 
them  closely1. 

1  This  dualism  ceased  when  by  Orders  in  Council  of  29  Dec.  1887  and  i\  Feb. 
1888,  the  whole  administration  of  the  army  was  centred  in  the  Commander-in-chief, 


V  The  Militia  under  Charles  II       455 

And  now  we  must  go  back  to  the  Restoration  to  take  up 
the  tale  of  the  militia.  The  necessity  for  a  standing  army  was 
denied,  thing  and  name  were  hateful,  the  ancient  force  was  to 
be  reorganized.  The  Statute  of  Winchester  was  still  in  force, 
the  old  principle  was  to  be  revived.  First,  however  (1662), 
the  act  recited  that ' the  sole  and  supreme  power,  government, 
command  and  disposition  of  the  militia,  and  of  all  forces  by  sea 
and  land  is,  and  by  the  laws  of  England  ever  was  the  undoubted 
right  of  his  majesty  and  his  royal  predecessors,  kings  and 
queens  of  England  ;  and  that  both  or  either  of  the  Houses  of 
Parliament  cannot,  nor  ought  to  pretend  to  the  same/  Now 
the  original  plan  of  this  militia  is  something  of  this  kind.  The 
king  appoints  a  Lieutenant  for  each  county,  who  with  the  king's 
approval  appoint  Deputy-Lieutenants.  They  at  a  meeting 
(this  comes  to  be  called  a  lieutenancy  meeting)  are  to  charge 
the  inhabitants  of  the  county  with  the  duty  of  finding  men  and 
armour  according  to  this  scale:  Anyone  with  a  revenue  of 
^"500,  or  with  ;£6,ooo  in  goods,  must  find  one  horse,  horseman, 
and  armour,  and  so  in  proportion  if  his  wealth  be  greater ; 
anyone  who  has  less  than  this,  but  has  a  revenue  of  ^50  or 
£600  in  goods,  must  find  a  foot  soldier  and  arms.  This 
county  force  the  Lord-Lieutenant  is  to  command ;  the  subor- 
dinate officers  are  to  be  commissioned  by  him,  unless  the  king 
shall  exercise  a  reserved  power  of  making  the  appointments ; 
these  officers  the  king  can  dismiss.  Ordinarily  the  force  can 
only  be  called  out  for  a  certain  very  limited  quantity  of 
exercise  in  the  year:  once  a  year  for  four  days  there  is  a 
general  muster  and  exercise  of  regiments;  four  times  a  year 
for  two  days  at  a  time  there  may  be  an  exercise  of  single 
companies  and  troops.  No  person  can  be  forced  to  serve  in 
person,  but  must  send  a  sufficient  man  and  pay  him  a  certain 
statutory  maintenance,  twelve  pence  per  day  for  a  foot  soldier;  * 
ammunition  the  county  must  provide;  if  the  force  is  called 

himself  responsible  to  the  Secretary  of  State  for  War.  The  authority  of  the 
Commander-in-chief  was  somewhat  abridged  by  Orders  in  Council  of  i\  Nov. 
1895,  and  the  office  itself  was  abolished  after  the  Boer  War  in  1904,  when  an 
Army  Council  was  created  by  Letters  Patent.  All  powers  exercised  under  the 
royal  prerogative  by  the  Secretary  of  State  for  War  and  the  Commander-in-chief 
were  transterred  to  the  Council,  which  in  1908  consists  of  seven  members  including 
the  Secretary  of  State  for  War  and  the  Chief  of  the  General  Staff. 


456  Constitutional  History  PERIOD 

into  actual  service  the  king  is  to  pay  wages,  but  these  have 
to  be  advanced  in  the  first  instance  by  the  persons  who  are 
charged  to  provide  the  men.  Now  the  object  for  which  this 
force  can  be  employed  is  this:  the  Lord-Lieutenant  may  call 
it  together,  and  in  case  of  insurrection,  rebellion,  or  invasion, 
may  conduct  and  employ  it  for  suppressing  of  all  such 
insurrections,  ancl  rebellions,  and  repelling  of  invasions  accord- 
ing as  he  shall  from  time  to  time  receive  directions  from  the 
king.  For  this  purpose  the  force  may  be  led  into  any  part  of 
England,  but  this  act  'is  not  to  be  deemed  or  taken  to  extend 
to  the  giving  or  declaring  of  any  power  for  the  transporting 
of  any  of  the  subjects  of  this  realm,  or  any  way  compelling 
them  to  march  out  of  this  kingdom,  otherwise  than  by  the 
laws  of  England  ought  to  be  done/  A  force  of  this  kind  the 
opinion  of  the  day  considered  the  proper  force  to  protect 
the  kingdom  against  invasion  and  rebellion.  The  curiously 
aristocratic  nature  of  the  force  will  not  escape  your  notice. 
It  is  to  be  provided  by  and  officered  by  the  landowners  of  the 
county. 

The  statutes  of  Cbarles  II  remained  the  basis  of  the 
militia  law  during  the  first  half  of  the  eighteenth  century. 
The  force  which  it  created  must  have  been  a  very  clumsy  and 
very  costly  force,  and  despite  all  tha  grand  things  that  were 
said  of  it,  it  hardly  became  an  effective  institution.  In  1757 
(30  Geo.  II,  c.  25)  all  the  earlier  statutes  were  swept  away,  and 
the  force  was  reorganized — there  was  fear  of  a  French  invasion. 
All  men  between  eighteen  and  fifty,  except  certain  specially 
exempted  classes,  are  liable  to  serve,  or  to  find  substitutes 
who  will  serve  as  privates  in  the  militia.  The  quota,  however, 
of  men  for  each  county  is  fixed  by  statute ;  thus  for  Hunting- 
donshire it  is  320,  for  Middlesex  1,600.  This  requisite  quota 
is  to  be  obtained  in  each  county  by  ballot.  Within  the  county 
the  apportioning  of  numbers,  first  to  hundreds  (or  lieutenancy 
sub-divisions)  and  then  to  parishes,  is  accomplished  by  the 
Lieutenant  and  Deputy- Lieutenants  at  lieutenancy  meetings, 
and  they  look  after  the  ballot  A  man  drawn  in  the  ballot 
or  his  substitute  must  serve  for  three  years:  the  amount  of 
exercise  that  can  be  required  of  him  is  minutely  defined.  In 
case  of  actual  invasion  or  imminent  danger  thereof,  or  in  case 


V  1  tie  Militia  from  1757  to  1852       457 

of  rebellion,  the  king  (notifying  the  occasion  to  parliament  if 
parliament  be  then  sitting)  can  draw  out  and  embody  all  the 
militia,  and  place  them  under  general  officers.  The  force  can 
then  be  obliged  to  serve  in  any  part  of  the  kingdom.  When 
the  militia  is  thus  embodied,  the  militiaman  is  to  receive  the 
pay  of  a  regular  soldier,  and  will  come  under  the  Mutiny  Act 
and  the  Articles  of  War.  No  provision  was  made  for  the  pay 
of  the  militia  during  training  and  exercise.  This  was  an 
intentional  omission,  it  made  necessary  an  annual  act  for  pay 
and  clothing,  and  thus  gave  the  House  of  Commons  a  control 
similar  to  that  which  it  had  over  the  regular  army.  The 
power  of  the  crown  in  the  appointment  of  officers  was  some- 
what increased,  but  an  officer  was  to  have  a  fairly  high 
property  qualification — £50  a  year  for  an  ensign,  £200  for  a 
captain,  and  so  forth. 

In  1786  again  a  clean  sweep  was  made  by  26  Geo.  Ill, 
c.  107;  this  is  a  long  and  intricate  militia  code  of  136  sections. 
The  general  plan  of  the  force,  however,  remains  that  settled  in 
1757.  This  again  gave  way  in  1802  to  a  new  code  of  178 
sections.  I  can  only  say  that  the  plan  remains  much  the 
same.  Very  rarely  indeed  had  the  militia  been  drawn  out 
and  embodied.  It  was  embodied  during  the  Seven  Years'  War, 
again  between  1778  and  1783,  again  between  1792  and  1803. 
Each  embodiment  is  marked  by  a  new  code.  In  1815  an  act 
was  passed  empowering  the  king  to  embody  it  because  of  the 
war  with  France.  A  profound  peace  followed.  The  ballot 
was  suspended,  and  I  believe  that  even  the  annual  exercising  of 
voluntarily  enlisted  militiamen  was  very  generally  suspended. 
Then  in  1852  there  was  a  new  terror,  and  consequently  a  new 
act.  It  did  not  sweep  away  the  previous  acts,  indeed  the  act 
.of  1802  is  still,  to  a  considerable  extent,  the  basis  of  the  law. 
It  endeavoured  to  make  the  militia  a  more  flexible  and 
serviceable  force.  The  number  of  men  is  fixed  at  80,000,  but 
in  case  of  actual  invasion  or  imminent  danger  thereof  the 
queen  may  direct  that  40,000  more  be  raised.  In  this  case 
she  must  first  communicate  the  reason  to  parliament,  if  there 
be  a  parliament  sitting ;  if  parliament  be  prorogued  she  must 
summon  it  to  meet  within  fourteen  days — that,  by  the  way, 
is  a  case  in  which  statute  orders  the  queen  to  call  parliament 


458  Constitutional  History  PERIOD 

together.  The  quotas  for  the  counties  are  now  to  be  fixed  by 
Order  in  Council ;  the  numbers  are  to  be  raised  by  voluntary 
enlistment,  but  if  this  fails  to  produce  the  requisite  total,  then 
the  ballot  is  to  be  resorted  to.  In  the  main  the  old  law  as  to 
the  obligation  to  serve  or  find  a  substitute  is  kept  on  foot.  The 
whole,  or  part  of  the  force,  can  be  exercised  for  twenty-one 
days  in  a  year.  By  Order  in  Council,  however,  the  time  may 
be  extended  to  fifty-six  days ;  by  similar  means  the  county 
force  can,  if  necessary,  be  exercised  out  of  its  county.  The 
law  as  to  embodying  the  militia  for  actual  service  remains 
much  as  before.  Many  alterations  are  made  as  to  the 
appointment  and  qualification  of  officers,  tending  to  give  the 
commissions  rather  to  real  soldiers  than  to  the  landed  gentry. 

However,  the  ballot  really  remained  in  suspense.  It  was 
Suspended  by  an  act  of  1829  for  a  year,  and  I  believe  that  it 
then  became  the  practice  to  pass  a  similar  act  in  every  year. 
In  1865  an  act  of  this  kind  was  passed,  and  since  then  the 
practice  has  been  to  include  the  act  of  1865,  which  suspended 
the  ballot,  in  the  Expiring  Laws  Continuance  Act.  But  even 
while  that  act  remains  in  force  the  ballot  may  be  introduced 
by  Order  in  Council.  This  was  actually  done  in  1830,  and  the 
balloting  clauses  remained  in  play  until  February,  1832.  I 
believe  that  since  then  there  has  been  no  ballot  The  bounties 
and  pay  are  high  enough  to  procure  what  is  considered  a 
sufficient  number  of  men. 

There  have  been  a  great  many  more  changes,  culminating 
in  an  important  Consolidation  Act  of  1882  (45  and  46  Vic., 
c.  49).  Briefly  the  result  is  this :  all  the  duties  and  powers 
of  the  Lords-Lieutenant,  over  or  in  relation  to  the  militia,  are 
taken  from  them.  These  are  now  exerciseable  by  the  queen 
through  a  Secretary  of  State,  or  any  officers  to  whom  the 
queen  may,  by  the  advice  of  a  Secretary  of  State,  delegate  such 
duties  or  powers.  The  officers  are  commissioned  directly  by 
the  queen,  but  the  Lieutenants  have  still  a  certain  power  of 
recommending  for  first  appointments.  There  is  now  no 
permanent  statute  fixing  the  number  of  the  militia.  It  is 
lawful  for  her  majesty  to  raise  and  keep  up  a  militia  consisting 
of  such  number  of  men  as  may  from  time  to  time  be  provided 
by  parliament  Militiamen  are  to  be  enlisted  voluntarily  for 


V  Recent  Changes  459 

some  term  not  longer  than  six  years.  They  go  through  six 
months'  preliminary  training ;  then  they  are  liable  each  year 
to  be  exercised  for  twenty-eight  days,  but  by  Order  in  Council 
this  can  be  extended  to  fifty-six.  The  force  can  be  embodied 
for  actual  service  by  Royal  Proclamation  in  case  of  imminent 
national  danger  or  great  emergency.  In  that  case,  if  par- 
liament be  prorogued,  it  must  be  summoned  to  meet  within 
ten  days;  the  force  can  then  be  kept  embodied  until  the  queen 
disembodies  it  by  proclamation.  It  can  be  sent  into  any  part 
of  the  United  Kingdom,  but  not  out  of  it ;  though  with  their 
own  consent  the  men  may  be  sent  to  Gibraltar  or  Malta.  As 
well  when  they  are  training,  as  when  they  are  embodied,  the 
officers  and  men  are  under  the  Mutiny  Act. 

As  you  will  see,  the  militia  while  keeping  its  name  has  by 
slow  degrees — every  step  can  be  traced  on  the  statute  book — 
become  something  utterly  different  from  what  it  was  in  the 
seventeenth,  even  in  the  eighteenth  century.  In  truth  it  is  very 
like  a  second  standing  army.  Owing  to  the  fact  that  England 
is  an  island,  we  have  never  taken  kindly  to  compulsory  military 
service;  the  consequence  is  that  we  have  two  professional 
armies.  The  old  ballot  clauses  of  1802  are  still  hanging  over 
our  heads,  but  they  would  be  rusty  machinery  for  the  present 
day.  The  militia  is  now  quite  as  much  under  the  control  of 
the  crown  as  is  the  regular  army.  The  Lord-Lieutenant  has 
ceased  to  be  a  military  officer,  the  militia  has  now  but  little  to 
do  with  any  organization  of  the  county1. 

1  Under  the  Territorial  and  Reserve  Forces  Act  of  1907  (7  Ed.  VII,  c.  9) 
County  Associations  were  established  for  the  purpose  of  raising  a  Territorial  Force 
for  home  defence.  Under  Pt  in,  §  33  of  the  Act  the  Army  Council  was  em- 
powered to  form  Special  Reservists  into  regiments,  battalions  and  other  military 
bodies,  as  provided  in  the  Reserve  Forces  Act  of  1882.  The  old  Militia  Battalions 
do  not  form  part  of  the  Territorial  Force,  and  are  quite  independent  of  the  County 
Associations.  They  form  *  Special  Reserve  Battalions'  of  the  Line  regiments  to 
which  they  severally  belong  and  are  liable  to  active  service  with  the  regular 
Battalions  whenever  and  wherever  required.  Their  officers  are  'Special  Reserve 
Officers'  of  the  regular  army.  The  old  Militia  therefore  has  ceased  to  exist  in 
name,  in  fact  and  in  law,  for  though  with  the  exception  of  twenty-three  suppressed 
Battalions,  the  old  Militia  Battalions  have  been  transferred  to  the  new  *  Special 
Reserve,'  they  are  no  longer  liable  only  for  service  in  the  United  Kingdom  and 
Ireland,  nor  are  they  enlisted  on  the  old  Militia  basis.  The  Volunteer  Territorial 
Force  (which  includes  Yeomanry  and  Volunteers)  is  more  akin  to  the  ancient 


460  Constitutional  History  PERIOD 

The  treatment  which  the  navy  has  received  at  the  hands 
of  parliament  has  been  curiously  different  from  that  of  the 
army.  While  the  statute  book  bristles  with  acts  about  the 
army,  acts  about  the  navy  are  very  few.  I  can  only  notice 
a  very  few  points. 

In  the  first  place  it  has  not  been  asserted  that  the  main- 
tenance of  a  standing  navy  even  in  time  of  peace,  without 
the  consent  of  parliament,  is  against  law.  In  point  of  fact 
parliament  has  long  since  acquired  just  as  much  power  over 
the  navy  as  over  the  army.  This  power  has  been  acquired  by 
means  of  appropriation  acts.  In  1885,  for  example,  a  sum  of 
2|  millions  odd  was  appropriated  for  the  wages,  etc.  of  59,000 
seamen  and  marines,  so  much  for  victuals  and  clothing,  so 
much  for  the  expenses  of  dockyards,  and  so  forth.  This  has 
practically  obliged  the  king  to  have  in  parliament  a  minister 
who  will  state  the  needs  of  the  navy,  and  the  manner  in  which 
money  is  spent.  But  no  act  of  parliament  is  necessary  to 
legalize  the  very  existence  of  a  royal  navy.  As  to  discipline: 
this  was  long  regulated  by  a  statute  made  immediately  after 
the  Restoration  (13  Car.  II,  c.  9).  This  having  been  several 
times  amended  was  replaced  by  an  act  of  1749  (22  Geo  II, 
c.  33).  This  code,  with  some  amendments,  remained  in  force 
until  1860,  when  it  was  replaced  by  another.  The  act  now  in 
force  is  the  Naval  Discipline  Act  of  1866  (29  and  30  Vic., 
c.  109).  It  covers  much  the  same  ground  as  the  act  which 
regulates  the  discipline  of  the  army :  defines  offences  and 
imposes  punishments.  In  the  past  there  was  this  difference, 
that  while  the  military  penal  code  was  to  be  found  largely  in 
Articles  of  War  made  by  the  crown,  ever  since  the  Restoration 
there  has  been  a  statutory  naval  penal  code  defining  offences 
and  awarding  punishments.  But  for  some  time  past  there 
has  really  been  little  difference  in  this  respect,  for  the  Army 
Acts  have  always  been  becoming  more  detailed  and  precise. 
The  act  now  in  force  for  the  army  expressly  provides  for  all 
or  most  of  the  offences  which  can  be  considered  as  very  serious, 
and  so  takes  them  out  of  the  sphere  of  articles  made  by  the 

fyrd.  Whether  or  no  the  Ballot  Act  (42  George  III,  c.  90)  could  be  legally  put  in 
force  to  obtain  men  for  the  '  Special  Reserve '  or  for  the  Territorial  Army,  whose 
conditions  of  service  more  resemble  those  of  the  old  Militia,  is  very  doubtful. 


V  Impressment  for  the  Navy  461 

queen.  On  the  other  hand  the  Naval  Act  has  a  very  general 
clause,  which  provides  for  the  punishment  of  any  act,  disorder 
or  neglect,  to  the  prejudice  of  good  order  and  naval  discipline 
not  hereinbefore  specified  ;  and  again,  it  provides  that  when 
no  punishment  is  mentioned  in  the  act,  an  offence  against  the 
act  may  be  punished  according  to  the  laws  and  customs  in 
such  cases  used  at  sea.  There  is,  however,  this  difference, 
that  the  Naval  Act  provides  for  offences  against  the  ordinary 
criminal  law.  A  sailor  of  the  royal  navy  who  commits  murder 
or  larceny  or  any  other  crime  on  sea,  or  on  land  outside  the 
United  Kingdom,  can  be  tried  by  a  court  martial  administer- 
ing the  ordinary  criminal  law  of  England.  It  is  only  in  quite 
rare  circumstances  that  a  soldier  can  be  tried  by  court  martial 
for  one  of  the  common  crimes. 

But  to  students  of  the  history  of  law  the  most  interesting- 
thing  about  the  navy  is  impressment.  The  history  of  the 
word  itself  is  very  curious — doubtless  pressing  suggests  the 
notion  of  compulsion,  physical  restraint — and  doubtless  for 
a  very  long  time  past  people  have  had  this  notion  in  their 
minds  when  they  talked  about  impressment,  pressing  sailors, 
the  press-gang  and  so  forth.  But  it  is,  I  believe,  quite  well 
established  that  the  word  originally  bore  a  quite  different 
sense.  In  the  National  Debt  Act  of  1870  (33  and  34  Vic., 
c,  71,  sec.  14),  one  may  read  that  the  money  issued  for  the 
payment  of  dividends  is  to  be  paid  to  the  chief  cashier  of  the 
bank  by  way  of  imprest.  It  is  from  impraestare — think  of 
the  French  \\vrdpreter — money  is  imprest  when  it  is  advanced 
for  a  specific  purpose ;  and  *  imprest  money '  was  the  sum 
advanced  or  given  to  soldiers  and  mariners  upon  enlistment 
Now  the  impressment  of  marines  for  the  purposes  of  the 
royal  navy  had  been  clearly  recognized  as  legal  by  statutes 
going  back  to  the  reign  of  Richard  II.  And  in  1743  in 
Rex  v.  Broadfoot  it  was  contended  by  Sir  Michael  Foster,  that 
*  the  right  of  impressing  mariners  for  the  public  service  is  a 
prerogative  inherent  in  the  crown,  grounded  upon  common- 
law  and  recognized  by  many  acts  of  Parliament.'  Broadfoot 
had  killed  one  of  a  press-gang  while  engaged  in  pressing 
seamen  under  a  legal  warrant  executed  in  an  illegal  manner, 
for  the  warrant  stated  that  its  execution  could  only  be 


462  Constitutional  History  PERIOD 

entrusted  to  a  commissioned  officer,  and  this  was  not  done. 
Foster  admitted  that  the  press-gang  were  not  acting  in  terms 
of  their  warrant,  and  so  were  engaged  in  attempting  to  make 
an  illegal  arrest;  but  he  thought  it  well  to  discuss  the  whole 
subject,  and  produced  a  long  array  of  authority  in  favour  of 
the  legality  of  pressing.  Afterwards  both  Mansfield  and 
Kenyon  upheld  its  legality*  and  there  can  now  be  no  doubt 
at  all,  to  press  sailors  into  his  service  is  one  of  the  king's 
prerogatives.  It  has  never  been  taken  away.  I  cannot  say 
when  last  it  was  used ;  it  is  not  used  in  time  of  peace ;  but 
we  should  be  rash  in  saying  that  it  would  never  be  used  in 
case  of  a  great  naval  war :  ,at  any  rate  there  the  power  is,  and 
parliament  has  left  it  alone.  It  has  been  so  long  disused  that 
there  is  some  difficulty  in  saying  who  might  be  impressed. 
However,  I  believe  it  certain  that  they  must  in  some  sense  be 
sailors — they  must  use  the  sea.  There  is  an  act  of  1740  still 
in  force,  which  exempts  persons  above  forty-five  years  of  age, 
or  below  eighteen  ;  persons  who  use  the  sea  are  by  the  same 
act  exempted  for  two  years  after  the  beginning  of  their  first 
voyage1. 

F.     Administration  of  Justice. 

It  is  important  at  the  outset  of  legal  study  to  have  some 
notion  of  the  history  of  the  courts  and  of  their  procedure,  for 
a  large  portion  of  our  law  is  not  statute  law,  but  case  law — 
'common  law*  and  'equity';  and  case  law  cannot  be  read 
unless  we  know  a  little  of  the  courts. 

We  must  first  dismiss  with  a  few  brief  words  what  is 
perhaps  the  most  important  court  held  in  England,  because 
(save  in  some  comparatively  minor  matters)  it  is  not  a  court 
for  England  — the  Judicial  Committee  of  the  Privy  Council. 

The  act  which  abolished  the  Court  of  Star  Chamber  did 
not  deprive  the  Privy  Council  of  all  jurisdiction.  In  particular 

1  2  Ric.  II,  stat.  i,  c.  4;  i  and  3  Phil,  and  Mary,  c.  16;  2  aftd  3  Anne,  c.  6; 
4  and  5  Anne,  c.  19;  7  and  8  Will.  Ill,  c.  21.  For  Rex  v.Broadfoott  State  Trials, 
xvni,  p.  1323  ff.  For  Mansfield's  judgment  in  Rex  v.  Tufrbs  (1776)  Cowper,  ' 
Reports,  II,  p.  512  if.  For  Kenyon  in  Ex  Parte  Fox,  State  Trials,  v,  276.  For 
the  whole  subject  Broom,  Constitutional  Law,  pp.  in — 114.  Robertson, Statutes 
Cases  and  Documents >  p.  344. 


V       Judicial  Committee  of  Privy  Council   463 

it  remained  the  supreme  Court  of  Appeal  for  all  the  king's 
lands  beyond  the  seas.  This  was  then  a  small  matter;  the 
king's  lands  beyond  the  seas  were  the  Isle  of  Man,  the 
Channel  Islands,  a  few  struggling  colonies.  Now  it  has 
become  a  very  great  affair,  as  the  king  by  cession,  conquest, 
and  colonization,  has  acquired  new  lands  in  every  quarter  of 
the  globe. 

Until  1833  this  jurisdiction  was,  in  fact,  exercised  by  such 
members  of  the  Privy  Council  as  had  held  high  judicial  offices. 
In  that  year  a  committee  was  created  by  statute,  consisting  of 
the  members  who  should  be  holding,  or  have  held,  certain  high 
judicial  offices,  and  this  committee  was  to  do  the  judicial  work. 
In  1871  four  paid  members  were  appointed,  and  they,  together 
with  the  Chancellor,  dp  almost  all  the  work  of  the  Court. 
According  to  a  scheme  at  present  at  work,  these  four  members 
will  also  be  the  four  Lords  of  Appeal  in  Ordinary,  and  thus 
the  two  supreme  tribunals  of  the  empire,  the  Privy  Council 
and  the  House  of  Peers,  will  for  practical  purposes  consist  of 
the  sr.me  members. 

Practically  this  committee  is  a  court  of  law,  but  adminis- 
trative forms  are  in  some  respects  maintained.  Its  'judgment' 
is  not  technically  a  judgment,  but  advice  to  the  queen,  where- 
upon an  Order  in  Council  is  made,  affirming  or  reversing  the 
judgment  of  the  colonial  court,  against  which  appeal  is  made. 
Only  one  opinion  is  expressed — secrecy  is  insisted  on.  These 
features  form  a  curious  reminder  of  the  time  when  judicial  and 
governmental  functions  were  intimately  blended,  and  the  same 
council  advised  the  king  on  acts  of  state  and  judicial  business. 

The  Council  does  a  little  work  for  England — is  the  Court 
of  Appeal  from  the  ecclesiastical  courts — and  until  1875  from 
the  Court  of  Admiralty ;  but  the  business  of  the  ecclesiastical 
courts  has  become  small  for  a  reason  soon  to  be  given. 

Turning  to  the  English  courts,  we  must  first  distinguish 
between  civil  and  criminal  jurisdiction — some  courts  have 
both  jurisdictions,  some  only  one. 

Now  with  respect  to  civil  jurisdiction  our -whole  judicial 
"system  has  been  recast  within  the  nineteenth  century. 

Let  me  recall  the  leading  dates  in  this  process ; 

1846.     Formation  of  new  County  Courts. 


464  Constitutional  History  PERIOD 

1857.  Transfer  to  new  Courts  of  ecclesiastical  jurisdiction 
in  testamentary  and  matrimonial  causes — (i)  Court  of  Probate, 
(2)  Court  of  Divorce. 

1875.  Fusion  of  all  superior  courts  of  law  and  equity 
(except  House  of  Lords)  into  a  new  supreme  court. 

1876.  Reformation  of  the  House  of  Lords  as  a  judicial 
tribunal. 

a.  The  Civil  Courts.  There  is  one  court  of  first  instance 
for  the  whole  of  England,  with  an  unlimited  competence  in  all 
civil  cases — the  High  Court  of  Justice.  From  this  an  appeal 
lies  to  the  Court  of  Appeal.  From  this  again  an  appeal  lies  to 
the  House  of  Lords.  These  courts  are  central  and  superior. 

Besides  these  there  are  some  five  hundred  '  county  courts ' 
which  are  local,  inferior,  and  of  limited  competence,  and  from 
them  an  appeal  lies  to  the  High  Court 

First  we  will  speak  of  the  county  courts.  We  have  already 
spoken  of  the  centralization  of  justice  and  of  the  great  work 
that  it  did  for  us  in  the  past,  giving  us  a  common  law.  But 
owing  to  the  dcc^y  of  the  old  iocc.)  rourts  this  extreme 
^iitralization  produced  many  evils.  The  system  was  too 
costly  and  dilatory  for  small  causes,  and  often  amounted  to 
an  absolute  denial  of  justice.  Attempts  were  made  to  correct 
this  evil  in  the  eighteenth  century  by  the  creation  of  petty 
courts  here  and  there,  'courts  of  conscience,'  or  'courts  of 
requests/  before  which  (without  trial  by  jury)  debts  might 
be  recovered.  But  no  general  reform  was  attempted  until 
1846,  when  a  new  system  of  courts  was  created  throughout 
the  land.  To  these  new  courts  was  transferred  such  remnants 
of  contentious  jurisdiction  as  were  possessed  by  the  old  county 
courts — those  county  courts  which  played  so  important  a 
part  in  the  earlier  Middle  Ages.  But  though  the  new  courts 
are  called  'county  courts/  they  really  have  little  to  do  with 
the  county  system.  The  'old  county  courts'  still  have  a 
theoretic  existence,  though  not  as  judicial  tribunals,  thus  the 
coroners  are  elected  in  what  is  a  county  court  of  the  old  type 
which  all  freeholders  may  attend ;  and  I  am  not  sure  that  to 
this  day,  even  with  our  system  of  vote  by  ballot,  the  members 
for  a  county  are  not  supposed  to  be  elected  in  what  is 
theoretically  a  county  court  of  the  old  type. 


V  County  Courts  465 

These  new  so-called  county  courts  have  been  steadily 
growing  in  importance.  Parliament  has  frequently  given 
them  fresh  powers1.  They  exercise  a  civil  jurisdiction  limited 
in  two  ways — (i)  by  the  amount  at  stake,  (2)  by  geography. 

(1)  Ordinarily   (but    there  are  some   large   exceptions) 
the  amount  claimed  must  not  exceed  £50. 

(2)  They  are  local  courts.  The  defendant  must  (ordinarily) 
be  sued  in  the  court  of  the  district  within  which  he  dwells  or 
carries  on  business. 

In  many  cases  a  plaintiff  has  a  choice  between  the 
county  court  and  the  High  Court;  in  some  he  must  go  to 
the  county  court,  and  suitors  are  discouraged  (by  rules  about 
costs)  from  taking  to  the  High  Court  matters  which  might 
have  been  heard  in  the  county  court. 

The  county  court  is  presided  over  by  a  judge  ;  there  are 
about  fifty  county  court  judges,  each  of  whom  therefore  has 
generally  several  districts.  The  judge  is  appointed  by  the 
Lord  Chancellor  from  among  barristers  of  seven  years'  stand- 
ing ;  he  can  be  removed  by  the  Chancellor  for  inability  or 
misbehaviour ;  he  is  disqualified  from  practising  as  a  barrister 
and  from  sitting  in  the  House  of  Commons;  his  salary  is 
charged  on  the  Consolidated  Fund. 

In  most  cases  either  of  the  parties  to  the  action  can 
insist  on  having  a  question  of  fact  tried  by  a  jury  of  eight. 
But  trial  by  jury  in  a  county  court  is  very  uncommon ; 
generally  the  judge  decides  both  fact  and  law. 

From  the  judge's  decision  on  any  point  of  law,  but  not 
from  his  decision  of  matter  of  fact,  there  lies  an  appeal  to  the 
High  Court  of  Justice.  With  the  leave  of  the  High  Court, 
but  not  without,  there  is  an  appeal  to  the  Court  of  Appeal 
and  so  to  the  House  of  Lords. 

A  few  other  local  courts  survive.  The  most  important  is  the 
court  held  by  the  Vice-Chancellor  of  the  County  Palatine  of 
Lancaster.  But  all  England  has  now  been  brought  within 
this  system  of  new  county  courts,  and  almost  every  year  they 
gain  something  in  dignity  and  importance  as  parliament  gives 
them  new  powers.  Their  business  is  entirely  civil  business. 

1  The  County  Courts  Act  of  1888  (51  and  51  Viet.,  c.  43)  is  the  last  com- 
prehensive measure  dealing  with  these  courts. 

M.  30 


466  Constitutional  History  PERIOD 

We  have  already  noticed  how  beside  the  old  courts  of 
common  law,  there  grew  up  in  later  Middle  Ages  a  court 
administering  equity ;  how  equity  obtained  a  large  field  for 
itself  by  the  invention  of  uses  and  trusts ;  and  how  equity 
became  a  fixed  body  of  rules  to  be  discovered  in  the  decisions 
of  the  Chancellors. 

I  believe  that  we  may  think  of  equity  as  becoming  a  fixed 
and  well  ascertained  body  of  law  towards  the  end  of  the 
seventeenth  century;  perhaps  1688,  the  year  of  the  Revolution, 
would  be  as  good  a  year  as  any  to  name.  Lord  Nottingham, 
who  became  Lord  Keeper  in  1673  and  shortly  afterwards 
Lord  Chancellor,  has  been  called  the  father  of  equity,  and 
seems  to  have  done  much  towards  defining  the  jurisdiction 
By  the  middle  of  the  next  century  Blackstone  could  explain, 
though  explanation  was  still  necessary,  that  courts  of  equity, 
like  other  courts,  were  bound  by  fixed  rules  and  were  not 
free  to  do  just  what  might  seem  to  be  fair  and  right  to  their 
judges.  'The  system/  he  writes1,  'of  our  courts  of  equity  is  a 
laboured  connected  system,  governed  by  established  rules,  and 
bound  down  by  precedents  from  which  they  do  not  depart, 
although  the  reason  of  some  of  them  may  perhaps  be  liable  to 
objection/  He  then  mentions  some  rules  which  he  thinks 
irrational  (for  instance,  the  husband  is  allowed  curtesy  of  a 
trust  estate,  but  the  widow  is  not  allowed  dower).  'All  these/ 
he  says,  '  and  other  cases  that  might  be  instanced,  are  plainly 
rules  of  positive  law  supported  only  by  the  reverence  that  is 
shown  and  in  general  very  properly  shown  to  a  series  of  former 
determinations/  Blackstone,  like  other  common  lawyers,  was 
not  very  fond  of  the  chancery.  The  view  of  the  thinking 
English  lawyer  of  his  time  seems  to  have  been  that  the  chancery 
was  a  necessary  evil,  though  they  were  unwilling  to  confess 
what  may  seem  to  us  the  truth,  namely  that  trial  by  jury  was 
becoming  an  antiquated  form  of  trial  inadequate  to  meet  the 
complicated  problems  which  arise  under  modern  law. 

I  propose  now  to  say  a  little  about  the  domain  of  modern 
equity;  and  first  about  the  courts  and  their  procedure.  At  the 
beginning  of  the  eighteenth  century  there  were  but  two  judges 
in  the  Court  of  Chancery,  the  Chancellor  [or  Lord  Keeper]  and 

1  Commentaries,  vol.  Ill,  p.  433. 


V  The  Court  of  Chancery  467 

the  Master  of  the  Rolls ;  and  the  Master  of  the  Rolls  was  not 
competent  for  all  business.  In  early  times  the  Chancellor 
was  assisted  by  certain  persons  known  as  Masters  in  Chan- 
cery; they  sat  in  court  as  his  assessors  and  did  some  of 
the  subordinate  work  under  his  supervision.  Of  these  the 
Master  of  the  Rolls  was  the  foremost  and  gradually,  as  it 
seems,  he  became  more  and  more  an  independent  judge.  In 
the  reign  of  George  II  his  functions  became  the  subject  of  a 
smart  controversy ;  it  was  affirmed  and  denied  that  he  was 
more  than  a  delegate  of  the  Chancellor.  An  act  of  parlia- 
ment of  the  same  reign  set  this  question  at  rest  (3-  Geo.  II, 
cap.  30).  The  Master  of  the  Rolls  became  an  independent 
judge,  but  there  were  a  good  many  matters  that  he  could  not 
hear,  and  a  case  which  had  been  before  him  might  be  taken 
before  the  Chancellor  for  a  rehearing.  In  1813  a  Vice- 
Chancellor  was  created ;  in  1841  two  more  Vice-Chancellors, 
though  the  third  Vice-Chancellorship  was  not  made  permanent 
until  1852.  In  1851  the  Lords  Justices  of  Appeal  were 
appointed.  The  final  constitution  of  the  court  when  it  was 
abolished  in  1875  was  this:  there  were  four  judges  of  first 
instance,  viz.  the  three  Vice-Chancellors  and  the  Master  of 
the  Rolls.  From  the  decisions  of  any  of  these  there  lay  an 
appeal  to  what  had  come  to  be  called  the  Court  of  Appeal 
in  Chancery.  Of  this  there  were  three  judges,  viz.  the  Chan- 
cellor and  the  two  Lords  Justices1.  From  the  Lord  Chancellor 
and  from  the  Court  of  Appeal  in  Chancery  the  appeal  was  to 
the  House  of  Lords.  I  have  already  noticed  how  near  the 
end  of  the  seventeenth  century  the  House  of  Lords  asserted 
and  established  its  right  to  entertain  appeals  from  the 
Chancery2.  Such  an  appeal,  unlike  a  writ  of  error,  might 
reopen  all  questions,  as  well  questions  of  fact  as  questions 
of  law.  In  the  Chancery  what  has  been  called  'the  one-judge' 
system  prevailed.  A  suit  was  begun  before  the  Master  of 
the  Rolls  or  one  of  the  Vice-Chancellors  and  every  step  in 
the  suit  was  taken  before  him  ;  and  he  sat  by  himself.  This 

1  The  Chancellor  by  himself/ or  the  two  Lords  Justices  together,  would  be 
competent  for  all  appeals;  some  matters  might  come  before  a  single  Lord  Justice. 
The  Loid  Chancellor  might  sit  as  a  judge  of  first  instance,  though  it  became  rare 
for  him  to  do  so.     F.W.M. 

2  See  above,  pp.  316 — 7* 

30—2 


468  Constitutional  History  PERIOD 

was  in  sharp  contrast  to  the  procedure  of  the  common  law 
courts  where  a  question  of  law  was  usually  argued  before  and 
determined  by  all  the  judges  of  the  court.  Then  again  there 
was  no  jury  in  the  Court  of  Chancery;  it  had  not  the  power 
to  summon  a  jury.  Sometimes  it  would  send  an  issue  of  fact 
to  be  tried  in  a  court  of  common  law  by  jury ;  this  was  at 
one  time  a  pretty  frequent  practice,  but  it  grew  rarer  as 
time  went  on,  and  at  last  very  rare  indeed.  Usually  the 
judge  determined  all  questions  both  of  fact  and  of  law.  It 
was  also  the  practice  before  1852  if  a  question  of  mere 
common  law  (law  as  opposed  to  equity)  arose  in  any  suit — 
and  such  a  question  might  well  arise  incidentally — to  send 
a  case  for  the  opinion  of  one  of  the  courts  of  common 
law.  That  practice  was  abolished  by  statute  in  1852(15  and 
16  Vic.,  c.  86,  sec.  61).  It  is  well  worth  mention  as  showing 
how  distinct  law  and  equity  had  been.  The  Chancellor  was 
not  supposed  to  know  common  law,  nor  were  the  judges  of 
the  older  courts  supposed  to  know  any  equity.  After  1852 
the  chancery  judges  could  decide  questions  of  pure  common 
law  if  they  arose  during  the  progress  of  a  suit. 

The  first  step  in  the  commencement  of  a  suit  (it  was  a 
suit  in  equity,  an  action  at  law)  was  the  filing  of  a  bill 
addressed  to  the  Lord  Chancellor;  this  stated  the  matters 
whereon  the  plaintiff  relied  and  prayed  the  desired  relief. 
Then  followed  the  obtaining  of  a  writ  of  subpoena.  "Now 
this  differed  very  materially  from  those  writs  original  at  the 
common  law  of  which  I  have  lately  spoken.  It  did  not  give 
the  defendant  any  knowledge  as  to  what  was  the  complaint 
against  him  ;  it  did  not  mention  any  cause  of  action.  There 
was  but  this  one  simple  and  perfectly  general  form  of  writ 
instead  of  the  many  different  forms  of  writ  whereby  actions 
were  begun.  This  from  the  first  made  equity  a  flexible 
system ;  so  to  speak,  it  left  room  for  growth ;  and  indeed 
when  contrasted  with  the  procedure  of  the  common  law  the 
procedure  of  equity  was  comparatively  formless.  I  do  not 
mean  that  chancery  pleading  did  not  require  great  technical 
skill — that  would  be  quite  untrue — but  there  were  not  a  fixed 
number  of  definite  forms  between  which  a  choice  had  to  be 
made.  In  1852  a  certain  change  was  made  which  rendered 


V  Chancery  Procedure  469 

needless  the  issue  of  a  writ  of  subpoena ;  the  defendant  was 
to  be  served  with  a  printed  copy  of  the  bill,  in  which  there 
was  an  indorsement  directing  him  to  appear,  but  into  this 
I  need  not  go.  The  generality  of  the  writ  from  the  earliest 
time  is  the  point  to  which  I  ask  attention.  Also  it  should  be 
noticed  that  until  a  comparatively  recent  time  there  was  no 
need  that  the  plaintiff  should  specify  the  relief  that  he  wanted; 
a  prayer  just  for  such  relief  as  the  nature  of  the  case  might 
require  was  sufficient,  and  the  plaintiff  could  be  given  any 
relief  to  which  he  was  entitled  by  the  facts  alleged  and  proved. 
This  was  afterwards  changed,  still  it  remained  the  practice  to 
the  end  to  pray  for  general  as  well  as  special  relief,  and  much 
could  be  granted  in  answer  to  this  general  prayer.  All  this 
was  very  different  from  what  went  on  in  the  common  law 
courts  where  a  plaintiff  might  fail  fatally  because  he  had  sued 
in  Trespass  when  he  ought  to  have  sued  in  Case  or  in  Trover. 
One  other  point  of  procedure  is  of  very  great  importance. 
The  chancery  had  for  the  most  part  borrowed  its  procedure 
from  the  ecclesiastical  courts.  The  defendant  was  required 
to  answer  the  matters  alleged  against  him  in  the  bill,  and  to 
answer  upon  oath.  The  statements  of  the  bill  were  turned  into 
an  interrogative  form,  and  the  defendant  had  to  answer  the 
questions  thus  put  to  him  fully  and  in  detail.  Now  here  is  a 
great  contrast  to  the  common  law  procedure,  and  I  have  no 
doubt  that  here  was  one  cause  for  the  great  unpopularity  of 
the  Court  of  Chancery  at  an  early  time ;  the  defendant,  it 
was  said,  was  forced  to  accuse  himself.  It  is  still  the  general 
rule  of  our  criminal  procedure  that  the  accused  cannot  be 
questioned,  and  indeed  cannot  give  evidence  even  if  he  wishes 
to  do  so,  though  some  exceptions  have  already  been  admitted 
and  the  rule  seems  to  be  upon  its  last  legs1.  But  until  very 
lately  what  is  still  true  of  criminal  procedure  was  true  also 
of  civil  cases.  Any  person  interested  in  the  question  was 
incompetent  to  testify;  this  included  of  course  the  plaintiff 
and  the  defendant,  they  could  not  give  evidence.  This  rule 
was  abolished  bit  by  bit  by  a  series  of  statutes  extending  from 

1  In  1898  (Act  to  amend  the  Law  of  Evidence,  61  and  62  Viet.,  c.  36)  every 
person  charged  with  an  offence,  and  the  wife  or  husband  of  the  person  so  charged 
was  allowed  to  give  evidence  at  every  stage  of  the  proceedings. 


470  Constitutional  History  PERIOD 

1833  to  1853.  The  first  great  alteration  took  place  in  1843, 
when  interested  persons  other  than  the  parties,  their  husbands 
and  wives,  were  rendered  competent  witnesses  (6  and  7  Vic., 
c.  85).  In  1851  (14  and  15  Vic.,  c.  99)  the  parties,  except  in 
criminal  proceedings,  were  made  competent  and  compellable 
to  give  evidence;  a  later  act  of  1853  (16  and  17  Vic.,  c.  83) 
dealt  with  the  evidence  of  husbands  and  wives.  It  is  very 
necessary  to  remember  this  in  reading  old  cases — not  so  very 
old  either,  forty  years  old — we  have  become  so  very  much 
accustomed  to  seeing  parties  as  witnesses  that  we  easily 
forget  that  this  is  only  under  modern  statutes.  Now  the  rule 
against  interested  witnesses  prevailed  in  the  chancery  as  well 
as  elsewhere,  and  the  parties  could  not  give  evidence  in  their 
own  favour.  Still  the  defendant  had  to  answer  the  bill  upon 
oath,  and  could  thus  be  obliged  to  give  evidence  in  the  plain- 
tiff's favour.  This  was  not  indeed  regarded  as  a  giving  of 
evidence;  it  was  a  sworn  answer  (answer  was  the  technical 
word)  to  the  charges  made  against  him  in  the  bill.  Well 
then  in  the  chancery  you  could  (to  use  the  proper  term) 
'obtain  discovery'  from  the  plaintiff;  you  could,  to  use  a  slang 
phrase,  '  scrape  his  conscience/  I  believe  that  here  we  have 
one  of  the  causes  why  the  chancery  came  to  be  known  as  a 
court  of  conscience ;  the  defendant  could  be  obliged  to  reveal 
what  he  knew — to  make  sworn  confession.  Indeed  at  almost 
every  point  chancery  procedure  differed  radically  from  common 
law  procedure.  Sometimes  it  seems  as  if  the  mere  fact  that 
one  rule  prevailed  in  the  old  courts  was  a  sufficient  reason  why 
another  should  prevail  in  the  new.  Nor  is  this  mere  fancy. 
The  chancery  had  been  obliged  to  keep  very  clear  of  the 
province  of  the  other  courts ;  any  open  usurpation  of  their 
powers  would  have  been  resented,  and  if  ever  there  was  what 
might  fairly  have  been  called  usurpation  it  was  concealed  by 
a  difference  of  terminology.  The  two  procedures  were  so 
distinct  that  a  lawyer  seldom  knew  much  about  both:  this 
emphasized  and  exaggerated  the  differences  between  the  two 
bodies  of  substantive  rules,  the  body  known  as  common  law 
and  that  known  as  equity. 

Equity  in  the  course  of  the  eighteenth  century  became  a 
great  body  of  rules  supplementing  the  common  law,  enforcing 


V       Fusion  of  Equity  and  Common  Law    471 

certain  obligations  which  common  law  did  not  enforce,  giving 
certain  remedies  which  the  courts  of  common  law  did  not  and 
could  not  give.  The  main  illustration  of  a  purely  equitable 
obligation  is  the  duty  of  a  trustee  and  person  who  holds 
property  upon  trust  for  another.  Of  any  such  obligation  the 
courts  of  common  law  knew  nothing. 

Again,  the  Court  of  Chancery  gave  new  remedies  for 
common  law  rights,  e.g.  injunction  and  specific  performance  of 
contracts.  You  build  a  wall  darkening  my  ancient  lights : 
the  Court  of  Common  Law  will  give  me  money  damages,  the 
Court  of  Equity  will  enjoin  you  to  pull  the  wall  down.  You 
contract  to  sell  me  land  and  refuse  to  carry  out  your 
contract:  the  Court  of  Common  Law  will  give  me  money 
damages,  the  Court  of  Equity  will  command  you  to  fulfil  your 
contract,  and  in  case  you  disobey  will  put  you  in  prison. 

It  is  easy  to  see  how  awkwardness  would  arise  from  such 
a  dual  system.  In  order  to  get  complete  justice  I  may  have 
to  go  to  two  courts. 

Mitigations  of  the  evil  were  introduced  in  the  nineteenth 
century.  It  was  settled,  for  instance,  that  the  Court  of  Common 
Law  might  grant  injunction,  and  the  Court  of  Equity  might 
give  damages.  But  at  length  it  was  determined  to  abolish  the 
dual  system.  This  was  effected  by  the  Judicature  Act,  which 
came  into  force  in  1875  and  amalgamated  all  the  old  courts, 
i.e.  Chancery,  King's  Bench,  Common  Bench,  Exchequer, 
Court  of  Admiralty,  Court  of  Probate,  Court  of  Divorce. 

The  Court  of  Admiralty  had  a  long  history  of  its  own — 
from  the  close  of  the  Middle  Ages. 

The  Court  of  Probate  and  the  Court  of  Divorce  were 
created  in  1857,  and  the  old  jurisdiction  of  the  ecclesiastical 
courts  over  testamentary  and  matrimonial  causes  was  trans- 
ferred to  them,  together  with  some  new  powers,  such  as  that 
of  completely  dissolving  a  marriage. 

In  place  of  these  we  have  the  High  Court  of  Justice  and 
the  Court  of  Appeal. 

The  High  Court  of  Justice  is  a  court  of  first  instance  for 
all  England  with  unrestricted  competence  in  all  civil  actions, 
capable  of  administering  and  bound  to  administer  both  law 
and  equity  in  every  case. 


472  Constitutional  History  PERIOD 

Originally  it  had  five  divisions — Chancery;  King's  Bench; 
Common  Bench;  Exchequer;  Probate, Divorce  and  Admiralty. 
But  an  Order  in  Council,  16  Dec.  1880,  fused  the  Common 
Bench  and  Exchequer  in  the  King's  Bench  Division.  We 
have  therefore  now  three  divisions — Chancery;  King's  Bench; 
Probate,  Divorce  and  Admiralty. 

To  each  of  these  divisions  certain  business  is  specially 
assigned.  Often  a  plaintiff  has  a  choice ;  sometimes  there  is 
but  one  division  to  which  he  ought  to  go.  But  this  distribu- 
tion of  business  is  an  utterly  different  thing  from  the  old 
distinction  between  courts  of  law  and  of  equity.  Any  division 
can  now  deal  thoroughly  with  every  action ;  it  can  recognize 
all  rights  whether  they  be  of  the  kind  known  as  'legal*  or  of 
the  kind  known  as  'equitable';  it  can  give  whatever  relief 
English  law  (including  'equity')  has  for  the  litigants.  They 
can  no  longer  be  bandied  about  from  court  to  court.  Also  it 
is  regarded  as  a  mere  matter  of  convenience  which  might 
be  altered  at  any  time  by  rules  made  by  the  judges.  Its 
chief  practical  import  is  that  in  cases  of  a  kind  specially 
assigned  to  the  Chancery  Division  there  can  be  no  trial  by 
jury  without  leave  of  the  judge.  In  other  cases  either  of  the 
parties  can  insist  that  any  question  of  fact  that  there  may  be 
shall  be  tried  by  jury.  But  really  trial  by  jury  in  civil  cases 
is  becoming  less  and  less  common.  Very  usually  both  parties 
are  willing  that  all  questions  whether  of  law  or  of  fact  shall 
be  disposed  of  by  the  judge. 

From  the  High  Court,  in  almost  all  cases,  lies  an  appeal 
to  the  Court  of  Appeal  and  thence  again  to  the  House  of  Lords. 
All  questions  of  law  (and  often  of  fact)  may  be  reopened. — 
There  is  no  jury  in  Court  of  Appeal  or  House  of  Lords. 

The  number  of  judges  is  small — twenty-nine  for  High 
Court  and  Court  of  Appeal  together,  including  the  Chancellor1. 
All  (except  the  Chancellor)  are  appointed  by  the  crown;  paid 
by  salaries  charged  on  the  Consolidated  Fund ;  may  not  sit  in 
the  House  of  Commons ;  hold  office  during  good  behaviour, 
but  can  be  removed  by  the  sovereign  on  an  address  presented 
by  both  Houses. 

1  The  number  is  now  (1908)  thirty-three. 


V  House  of  Lords  473 

From  almost  every  judgment  or  order  of  the  Court  of 
Appeal  appeal  lies  to  the  House  of  Lords. 

We  have  seen  how  in  the  Middle  Ages  the  House  of  Lords 
became  a  court  capable  of  correcting  errors  of  the  lower  courts 
of  common  law,  and  how  in  the  seventeenth  century  it  suc- 
cessfully asserted  the  right  to  hear  appeals  from  the  Chancery. 

It  is  well,  however,  to  note  the  discrepancy  between  law 
and  actual  practice.  In  the  eighteenth  century  it  became 
customary  for  the  lords  to  leave  their  judicial  business  to  be 
done  by  such  only  of  their  number  as  were  distinguished 
lawyers.  So  late  as  1844  some  'lay  lords'  were  with  difficulty 
restrained  from  voting  on  difficult  questions  of  law  arising  out 
of  the  trial  of  Daniel  O'Connell.  We  have  come  to  regard  it 
as  a  'constitutional*  rule  that  only  the  law  lords  are  to  sit, 
and  now  by  a  statute  of  1876  there  must  be  three  law  lords 
present — but  the  rule  is  only  a  *  constitutional '  not  a  '  legal ' 
rule — every  lord  who  has  a  right  to  sit  and  vote  when  the 
House  is  about  its  legislative  business,  has  also  a  right  to  sit 
and  vote  when  the  House  is  acting  as  a  Court  of  Appeal, 
though  this  right  is  not  exercised. 

The  act  of  1876  introduced  lords  of  a  new  kind,  lords  of 
appeal  in  ordinary — salaried  and  holding  office  during  good 
behaviour,  but  dismissible  on  address  presented  by  both 
Houses.  Their  dignity  is  not  hereditary.  At  present  there 
are  three  such  lords — there  will  hereafter  be  four  along  with 
the  Chancellor — and  with  some  help  from  other  law  lords  they 
do  the  judicial  business  of  the  House. 

b.  The  Criminal  Courts.  Punishable  offences  fall  into 
two  classes — indictable  and  non-indictable. 

A  vast  quantity  of  petty  offences  are  by  statute  punishable 
upon  summary  conviction — this  means  trial  without  jury 
before  two  justices  (or  one  police  magistrate). 

We  have  traced  the  history  of  this  jurisdiction1.  It  grows 
rapidly  during  the  eighteenth  and  nineteenth  centuries. 
Statute  after  statute  prescribed  that  this  and  that  petty 
offence  might  be  summarily  punished  by  the  justices.  At 
last,  in  1848,  a  statute  was  passed  regulating  the  procedure. 

1  See  above,  pp.  332 — 6. 


474  Constitiitional  History  PERIOD 

The  courts  in  which  this  jurisdiction  is  exercised  are  often 
spoken  of  as  Petty  Sessions. 

The  punishments  inflicted  by  these  courts  can  seldom 
exceed  three  months  imprisonment  and  for  the  most  part 
consist  of  fines  of  varying  amount.  The  province  of  this 
summary  justice  is  variegated.  At  the  one  end  of  the  scale 
there  are  what  would  commonly  be  called  the  smaller  crimes 
— assaults,  small  thefts,  malicious  injuries  to  property ;  at  the 
other,  disobediences  to  statutory  rules  framed  to  secure  some 
economic  or  social  good,  as,  for  instance,  public  health,  educa- 
tion, the  well-being  of  factory  children,  a  revenue  from  excise 
and  customs  and  the  like:  between  these  poles  lie  the  breaches 
of  good  order,  such  as  disorderly  drunkenness  and  vagabondage 
in  its  various  forms,  the  pettier  kinds  of  dishonesty — adultera- 
tion, the  use  of  false  weights  and  measures,  cruelty  to  animals, 
some  electoral  malpractices  and  other  particulars  not  to  be 
classified.  How  vital  a  part  of  our  system  this  summary 
justice  has  become  may  best  be  shown  by  figures.  In  1883 
the  number  of  persons  convicted  by  juries  did  not  amount  to 
12,000,  while  more  than  80,000  sentences  of  imprisonment 
were  passed  by  justices  without  any  trial  by  jury1. 

Generally,  but  not  always,  there  is  an  appeal  to  Quarter  Ses- 
sions and  questions  of  law  can  be  brought  before  the  High  Court. 

In  some  large  towns  this  work  is  now  done  by  paid 
justices  of  the  peace  known  as  police  magistrates,  or  stipendiary 
magistrates.  The  system  was  gradually  introduced  into  London 
by  statutes  beginning  in  1792,  and  since  1835  a  municipal 
borough  may  have  a  stipendiary  magistrate  if  it  chooses  to 
ask  for  one  and  pay  for  one.  These  magistrates  are  appointed 
by  the  queen,  and  hold  office  like  the  other  justices  of  the 
peace  merely  during  good  pleasure. 

The  graver  offences  (felonies  and  misdemeanours)  can  be 
punished  on  an  indictment  Indictment  (as  already  said) 
is  still  in  form  an  accusation  made  by  a  grand  jury.  An 
indictment  may  be  the  first  step  in  a  prosecution.  As  a 
matter  of  fact  grand  jurors  do  not  now  proceed  upon  their 
own  knowledge.  Someone  prefers  a  bill  of  indictment,  and 

1  Of  61,463  persons  tried  for  indictable  offences  in  1905,  49,138  were  tried 
summarily.    Judicial  Statistics,  England  and  Wales*  Pt.  i. 


V  Criminal  Courts  475 

they,  after  hearing  evidence  for  the  prosecution,  but  not  for 
the  defence,  decide  whether  there  is  sufficient  cause  for  putting 
the  accused  upon  his  trial :  if  so,  they  find  the  bill  a  true  bill, 
if  not,  they  ignore  it.  The  grand  jury  must  consist  of  not 
less  than  twelve,  not  more  than  twenty-three. 

'Any  person  may  present  a  bill  to  a  grand  jury,  accusing 
any  other  person  of  any  crime  whatever* — this  is  the  general 
rule  to  which  as  yet  hardly  any  exception  has  been  made1.  Thus 
anyone  may  prefer  a  bill  against  one  of  the  queen's  ministers. 

An  indicted  person  will  be  tried — unless  he  cannot  be 
found,  in  which  case  he  may  (theoretically)  be  outlawed.  An 
outlawry,  however,  would  be  a  tedious  process  conducted  by 
the  sheriff;  the  outlaw,  in  case  of  felony  or  treason,  would  be 
in  the  same  position  as  if  he  had  been  tried,  and  even  in  case 
of  misdemeanour  his  goods  would  be  forfeited.  Outlawry  is 
not  used  now — indeed  is  not  worth  using. 

There  are  other  means  besides  indictment  of  bringing  a 
man  to  trial  for  an  indictable  offence — but  these  are  of  limited 
applicability. 

(1)  A  verdict  of  a  coroner's  jury  of  manslaughter  or 
murder  is  equivalent  to  indictment. 

(2)  So  too  is  a  criminal  information  by  Attorney-General 
or  the  Master  of  the  Crown  Office  in  case  of  misdemeanour. 

A  person  thus  accused  by  indictment,  inquest,  or  informa- 
tion, is  tried  by  a  petty  jury. 

The  criminal  courts  are  (i)  Quarter  Sessions,  (2)  the  High 
Court  of  Justice. 

Quarter  Sessions  are  not  competent  to  try  quite  the  worst 
offences,  such  as  murder,  treason,  and  some  others — perjury, 
forgery,  libel,  etc.  They  are  constituted,  as  of  old,  by  justices 
of  the  peace — who  are  the  judges  of  law — while  a  jury  decides 
questions  of  fact.  An  elected  chairman  presides'2. 

Since  1875  all  the  other  courts  which  try  indictable 
offences  are  theoretically  branches  of  the  High  Court  of  Justice 
— this  is  a  reform  of  a  highly  technical  character.  Prisoners 
are  tried  either  before  the  High  Court  in  London,  or  at  the 
Central  Criminal  Court,  or  before  Commissioners  of  Assize, 
Oyer  et  Terminer,  Gaol  Delivery;  but  such  Commissioners 

1  Mr  G.  J.  Talbot,  K.C.,  reminds  me  that  a  very  considerable  inroad  on  the 
old  principle  was  made  by  the  Vexatious  Indictments  Act  of  1859. 
3  In  Quarter  Session  boroughs  the  Court  is  a  recorder. 


476  Constitutional  History  PERIOD 

(though  they  are  not  in  all  cases  permanent  judges  of  the 
High  Court)  hold  the  High  Court  of  Justice  in  the  various 
shire  towns.  To  explain  this  would  take  us  too  far. 

In   these   criminal  cases  there  is  properly   speaking  no 
appeal.     But  (i)  occasionally  the  High  Court  will  grant  a  new 
trial  after  a  conviction  for  misdemeanour:  it  does  not  grant  a 
new  trial  in  case  of  felony,  or  after  an  acquittal  for  mis- 
demeanour.    (2)     There   is   a   procedure   by   writ  of  error 
whereby  (with  the  Attorney-General's  consent)  cases  can  be 
taken  to  the  Court  of  Appeal  and  thence  to  the  House  of 
Lords :  but  this  procedure  can  only  be  used  in  very  few  cases 
— it  can  only  be  used  when  there  is  an  *  error  apparent  on  the 
record.'     It  is  difficult  to  describe  without  going  into  details 
what  errors  are  'apparent  on  the  record'  and  what  not,  but 
the  main  matter  is  this,  that  no  error  made  by  the  judge  in 
charging  the  jury  will  appear  on  the  record,  and  a  wrong  or 
even  perverse  verdict  cannot  be  thus  corrected.     In  truth 
writs  of  error  are  extremely  rare1.   (3)  On  a  conviction  (but  not 
an  acquittal)  the  judge  may,  if  he  thinks  fit,  reserve  a  question 
of  law  (but  not  of  fact)  for  a  Court  for  Crown  Cases  Reserved 
which  will  consist  of  five  or  more  judges  of  the  High  Court 
Lastly  the  king  can  pardon  a  criminal,  either  absolutely  or  upon 
condition,  and  this  power,  wielded  by  the  Home  Secretary,  is 
sometimes  used  as  a  means  (a  clumsier  means  there  could  not 
be)  for  practically  nullifying  an  unsatisfactory  verdict3. 

It  should  just  be  noticed  that  the  House  of  Lords  has  other 
judicial  functions  besides  that  of  acting  as  a  Court  of  Appeal, 
functions  which,  were  they  exercised  at  all,  would,  I  take  it, 
even  at  the  present  day,  be  exercised  by  the  whole  body  of 
the  House,  and  not  merely  by  the  law  lords,  (i)  As  of  old  a 
peer  accused  of  felony  or  of  treason  must  be  tried  by  his 
peers.  He  cannot  even  (it  seems)  elect  to  be  tried  by  a  jury 
as  a  commoner  would  be8.  (2)  There  might  be  an  impeach- 

1  By  the  Criminal  Appeal  Act,  7  Edw.  VII,  c.  23,  §  20,  writs  of  error  were 
abolished. 

a  In  1907  (Criminal  Appeal  Act,  7  Edw.  VII,  c.  23)  a  Court  of  Criminal 
Appeal  was  established.  A  person  convicted  on  indictment  may  appeal  on  any 
ground  of  appeal  which  involves  a  question  of  law  alone.  If  a  question  of  fact 
alone  or  of  mixed  law  and  fact  is  involved  he  must  obtain  the  leave  of  the  Court 
of  Criminal  Appeal  or  the  certificate  of  the  judge  who  tried  him.  The  powers  and 
authority  of  the  C.C.R.  are  now  vested  in  the  Court  of  Criminal  Appeal,  and  its 
old  procedure  by  case  stated  may  still  be  used  in  certain  cases. 

3  See  above,  pp.  169 — 71. 


V  Magisterial  Examination  477 

ment — a  procedure  of  which  we  have  already  spoken1.  Since 
the  death  of  William  III  there  have  been  but  nine;  in  the 
nineteenth  century  but  one,  that  of  Lord  Melville  in  1805;  the 
most  famous  case  of  course  is  the  trial  of  Warren  Hastings 
which  dragged  on  its  weary  length  at  irregular  intervals  for 
seven  years.  It  seems  highly  improbable  that  recourse  will 
again  be  had  to  this  ancient  weapon  unless  we  have  a  time  of 
revolution  before  us.  If  a  statesman  has  really  committed  a 
crime  then  he  can  be  tried  like  any  other  criminal :  if  he  has 
been  guilty  of  some  misdoing  that  is  not  a  crime,  it  seems  far 
better  that  it  should  go  unpunished  than  that  new  law  should 
be  invented  for  the  occasion,  and  that  by  a  tribunal  of 
politicians  and  partizans;  for  such  misdoings  disgrace  and 
loss  of  office  are  now-a-days  sufficient  punishments.  Lastly  a 
modern  House  of  Commons  will  hardly  be  brought  to  admit 
that  in  order  to  control  the  king's  advisers  it  needs  the  aid  of 
the  House  of  Peers.  However  there  the  old  weapon  is — an 
accusation  by  the  commons  of  England  at  the  bar  of  the 
House  of  Lords. 

We  have  said  that  indictment  may  be  the  first  step  in 
prosecution ;  but,  as  a  matter  of  fact,  this  is  not  usual. 
Generally  before  the  accused  is  indicted,  he  is  subjected  to  a 
magisterial  examination  and  is  committed  to  prison  to  await 
his  trial  or  else  he  is  bailed.  Magisterial  examination,  of 
which  we  have  already  traced  the  historical  beginnings  in 
statutes  of  Philip  and  Mary,  has  now  become  a  preliminary 
trial2.  Both  prosecutor  and  accused  may  produce  witnesses — 
have  power  to  compel  the  attendance  of  witnesses.  The 
accused  is  not  questioned,  is  not  bound  to  say  anything, 
receives  'the  usual  caution.1  The  procedure  is  regulated  by  a 
statute  of  1848  (n  and  \2  Vic.,  c.  42).  An  application  for  a 
writ  of  habeas  corpus  is  a  ready  means  for  bringing  before  the 
High  Court  any  question  as  to  the  legality  of  an  imprisonment. 
The  famous  act  of  1679  was  made  yet  more  efficient  by  an 
act  of  1816. 

Of  substantive  criminal  law  we  must  say  but  a  very  few 
words.  At  the  beginning  of  the  last  century  the  number  of 

1  See  above,  pp.  317—8. 
8  See  above,  p.  233. 


478  Constitutional  History  PERIOD 

capital  crimes  was  very  large;  it  has  been  diminished  by  a 
series  of  acts  beginning  in  1827  and  extending  to  1861.  In  that 
year  it  was  reduced  to  treason,  murder,  piracy  with  violence, 
and  setting  fire  to  dockyards  and  arsenals.  As  regards  treason 
the  basis  of  our  law  is  still  the  statute  of  1352  on  which  we 
have  already  commented1.  The  process  of  glossing  its  elastic 
language  about  ^imagining  the  king's  death/  and  *  levying 
war  against  the  king/  went  on  during  the  eighteenth  century. 
And  in  1795  an  act  was  passed,  which  is  still  in  force,  giving 
statutory  authority  to  several  of  the  interpretations  which 
judges  had  put  upon  the  old  act.  At  the  end  of  the  eighteenth 
century  there  was  a  great  outcry  against  what  were  called 
the  constructive  treasons — the  doctrines  whereby  judges  had 
stretched  the  words  of  the  statute  of  Edward  III  beyond 
their  natural  meaning.  Those  doctrines,  however,  seem  still 
to  be  law,  though  some  of  the  offences  which  they  declare  to 
be  treason  can  now  be  dealt  with  under  a  statute  of  1848  as 
felonies  subjecting  the  offender  to  a  maximum  punishment  of 
penal  servitude  for  life. 

The  old  classification  of  indictable  crimes  as  treasons, 
felonies  and  misdemeanours  is  still  maintained  and  has  some 
procedural  consequences.  A  trial  for  felony  differs  in  some 
respects  from  a  trial  for  misdemeanour.  But  owing  to  the 
abolition  of  the  punishment  of  death  in  all,  except  a  very  few, 
cases,  it  has  lost  most  of  its  old  meaning  and  is  now  little 
better  than  an  absurdity — a  misdemeanour  is  now  often 
punished  more  severely  than  a  felony.  But  of  all  these 
matters  you  will  have  to  learn  a  great  deal  more  when  you 
come  to  study  criminal  law.  I  think,  however,  that  a  lecturer 
on  constitutional  law  is  bound  to  try  to  bring  out  the  relation 
between  what  we  call '  the  government '  and  the  administration 
of  justice. 

c.  Government  and  Justice.  Notice:  (i)  The  indepen- 
dence of  the  judges.  Of  the  terms  of  their  appointment  we 
have  already  spoken :  they  hold  office  on  good  behaviour  but 
are  liable  to  be  removed  on  an  address  presented  by  both 
Houses.  The  Lord  Chancellor  is  a  curious  exception  to  the 


1  See  above,  pp.  226—8,  319. 


V  Government  and  Justice  479 

general  rule.  Again,  since  their  salaries  are  charged  on  the 
Consolidated  Fund,  their  conduct  does  not  come  before 
parliament  year  by  year.  Further,  for  a  judge  to  give  an 
opinion  as  to  a  case  which  was  to  come  before  him  judicially 
would  now  be  considered  distinctly  wrong.  Coke  condemns 
the  practice  in  the  Institutes,  though  it  had  been  common, 
and  he  himself  had  given  opinions  to  the  crown.  We  have 
also  heard  Coke  assert  the  doctrine  that  the  king,  though  he 
is  the  source  of  all  justice,  cannot  act  as  a  judge.  Since  the 
fall  of  the  Star  Chamber  no  king  has  sought  to  do  this. 

(2)  The  crown  has  no  control  over  civil  justice.  The 
process  of  the  superior  courts  runs  in  the  queen's  name — 
'  Victoria  Dei  Gratia  etc.  commands  the  defendant  to  appear ' — 
but  a  plaintiff  obtains  such  a  writ  as  a  matter  of  right  and  the 
queen  herself  could  not  prevent  its  issue.  So  when  the  plaintiff 
has  obtained  judgment,  execution  follows  as  a  matter  of 
course ;  he  obtains  a  writ  commanding  the  sheriff,  e.g.,  to 
sell  the  goods  of  the  defendant  to  satisfy  the  debt.  The  writ 
runs  in  the  queen's  name — '  Victoria  D.G.  etc.  commands  the 
sheriff  to  an  execution ' ;  but  Victoria  cannot  stop  the  issue 
of  the  writ  The  sheriff  would  be  bound  to  execute  it,  even  ^ 
if  he  had  a  command  to  stop  from  the  queen's  own  mouth  or  ! 
from  a  Secretary  of  State.  And  a  sheriff  who  disobeyed  the  | 
writ  would  be  liable  not  merely  to  criminal  proceedings  (which 
the  queen  might  stop)  but  to  civil  proceedings  at  the  suit  of 
the  party  damaged. 

Again,  the  royal  power  of  pardon  does  not  extend  to  civil 
proceedings.  If  A  owes  B  a  debt,  the  queen  has  no  power  to 
forgive  the  debt.  So  if  A  assaults  or  libels  B,  the  queen 
cannot  forgive  A,  or  stop  B  from  suing  A.  This  is  so,  even 
when  the  wrong  is  a  crime  as  well  as  a  tort  (civil  injury). 
Thus  in  the  case  of  false  imprisonment,  which  is  both  a  wrong 
and  a  crime — the  queen  can  pardon  the  crime,  but  not  the 
tort.  The  importance  of  this  can  be  seen  if  we  suppose  the 
person  guilty  of  false  imprisonment  to  be  a  Secretary  of 
State,  for  the  queen  cannot  prevent  his  being  sued.  Heavy 
damages  have  before  now  been  recovered  against  a  Secretary 
of  State — the  crown  could  not  protect  one  of  its  most  eminent 
servants. 


480  Constitutional  History  PERIOD 

(3)  On  the  other  hand  legally  the  crown  has  a  considerable 
control  over  criminal  proceedings,  (i)  It  can  pardon  any 
crime  before  or  after  conviction.  This  power  is  exercised  for 
the  king  by  a  Secretary  (Home)  of  State.  A  may  commit  a 
brutal  murder,  the  king  can  pardon  him  and  so  stop  any  trial. 
An  explanation  of  this  wide  legal  power  may  be  seen  in  this, 
that  during  the  Middle  Ages  there  were  two  methods  of  pro- 
ceeding against  a  felon — the  appeal  brought  by  the  person 
injured  by  the  crime,  for  instance,  the  person  whose  goods  were 
stolen,  or  the  next  kinsman  of  the  murdered  man — and  the 
indictment,  a  royal  procedure  at  the  king's  suit.  The  king  by 
pardon  might  free  a  man  from  indictment,  but  not  from  appeal. 
But  appeals  of  felony  have  long  been  disused  and  were 
abolished  in  1819  (59  Geo.  Ill,  c.  44).  Thus  the  king  can 
completely  pardon  any  crime.  The  one  limit  to  the  efficacy 
of  a  pardon  is  that  imposed  by  the  Act  of  Settlement  (1700), 
namely,  that  a  pardon  cannot  be  pleaded  to  an  impeachment 
In  Danby's  case,  1678,  it  had  been  questioned  whether  an 
impeachment  could  be  prevented  by  a  pardon ;  it  had  been 
contended  that  an  impeachment  should  be  considered  as 
analogous  rather  to  an  appeal  of  felony  than  to  an  indictment 
at  the  king's  suit.  We  must,  I  think,  take  it  as  the  result  of 
that  case  that,  as  the  law  then  stood,  an  impeachment  could 
be  prevented  by  a  pardon — but  the  Act  of  Settlement  altered 
the  law.  A  pardon  then  cannot  stop  an  impeachment — it 
cannot  be  pleaded  as  a  bar  to  an  impeachment — but  there  is 
nothing  to  prevent  the  king  from  pardoning  after  the  impeached 
person  has  been  convicted  and  sentenced,  and  some  of  the 
Scottish  lords  who  were  impeached  for  the  rebellion  of  1715 
received  pardons. 

The  legal  power  of  pardon  then  is  very  extensive  indeed. 
The  check  upon  it  is  not  legal  but  consists  in  this,  that  the 
king's  secretary  may  have  to  answer  in  the  House  of  Commons 
for  the  exercise  that  he  makes  of  this  power. 

The  king  has  no  power  to  commute  a  sentence.     When 

we  hear  of  sentences  being  commuted,  what  really  happens  is 

that  a  conditional  pardon  is  granted :  a  condemned  murderer  is 

pardoned  on  condition  of  his  going  into  penal  servitude.     It  is 

^a  nice  question  whether  he  might  not  insist  on  being  hanged. 


and  Private  Prosecution       481 

(ii)  The  king's  Attorney-General  has  power  to  stop  any 
criminal  prosecution  without  pardon.  All  criminal  proceed- 
ings (now  that  appeals  are  abolished)  are  in  law  at  the  suit 
of  the  king — Rex  v.  A.  B.  If  the  king's  Attorney- General 
states  that  he  will  not  prosecute  (enters  a  nolle proseqtti)  then 
proceedings  are  at  an  end,  though  other  proceedings  may  be 
begun.  This  power  is  sparingly  exercised  to  stop  prosecutions 
which  are  obviously  vexatious.  The  safeguard  consists  in 
this,  that  the  Attorney-General  is  expected  to  be  a  member 
of  the  House  of  Commons,  and  according  to  usage  a  member 
of  the  Ministry,  though  not  of  the  Cabinet.  Any  use  he  may 
make  of  this  power  might  thus  be  called  in  question :  he 
could  not  use  it  for  political  purposes  without  the  approval  of 
the  House  of  Commons. 

On  the  whole,  though  the  crown  has  thus  by  law  a 
complete  control  over  criminal  justice,  the  prosecution  of 
offenders  has  hitherto  been  left  very  much  in  the  hands  of  the 
public.  The  king  has  had  officers,  '  law  officers,'  Attorney- 
General  and  Solicitor-General,  charged  with  the  duty  of 
bringing  the  greatest  offenders  to  justice,  but  it  is  in  the 
power  of  any  man  to  begin  a  criminal  prosecution  by 
presenting  a  bill  of  indictment  to  a  grand  jury,  and  as  a 
matter  of  fact,  until  very  lately,  it  has  generally  been  left 
to  those  who  have  suffered  by  crime  to  bring  an  ordinary 
criminal  to  justice.  This  work  is  now  falling  more  and  more 
into  the  hands  of  a  Director  of  Public  Prosecutions,  an  officer 
first  appointed  in  1879,  but  we  have  as  yet  made  no  large 
inroad  on  the  general  principle,  that  any  person  may  prefer 
a  bill  of  indictment  against  any  other  person  accusing  him  of 
any  crime.  The  assent  of  the  Director  of  Public  Prosecutions 
has  been  required  in  certain  libel  cases  by  an  act  of  1881,  but 
that,  I  think,  is  as  yet  the  only  exception.  This  principle  is 
an  important  one:  if  I  think  that  the  Home  Secretary  has 
been  guilty  of  any  criminal  offence,  e.g.  of  bribery  or  extortion, 
I  can  present  a  bill  to  a  grand  jury — Dimply  as  a  member  of 
the  public,  and  although  the  alleged  crime  has  done  me 
personally  no  harm—and  it  would  be  a  very  serious  step  for 
an  Attorney-General  to  shelter  his  colleague  by  stopping^  a 
prosecution,  unless  it  was  obviously  irivolous.  A  principle  .of 
M.  31 


482  Constitutional  History  PERIOD 

law  is  not  unimportant  because  we  never  hear  of  it ;  indeed 
we  may  say  that  the  most  efficient  rules  are  those  of  which 
we  hear  least,  they  are  so  efficient  that  they  are  not  broken. 
No  person,  even  though  he  be  a  minister  of  the  crown,  can 
commit  an  indictable  offence  without  running  the  risk  of  some 
member  of  the  pifblic  beginning  a  prosecution  against  him. 

(iii)  And  now  as  to  proceedings  against  the  king.  Here 
we  meet  the  maxim  that  'the  king  can  do  no  wrong/  This  we 
may  translate  thus,  *  English  law  does  not  provide  any  means 
whereby  the  king  can  be  punished  or  compelled  to  make 
redress/  I  think  that  you  ought  to  distinguish  quite  clearly 
this  proposition  of  English  law  from  the  doctrine  of  some 
writers  on  jurisprudence,  that  a  subject  can  have  no  right 
against  the  sovereign,  that  the  sovereign  can  have  no  legal 
duty  to  the  subject.  I  coirfss^thgt  this  doctrine  seems  to  me 
merely  a  matter  of  words.  Suppose,  to  take  the  simplest  case, 
that  an  absolute  monarch  declares  it  his  will  that  his  subjects 
may  sue  him  for  any  money  they  lend  him,  shall  we  say,  is  it 
convenient  to  say,  that,  while  this  law  remains  unaltered,  it 
gives  the  subjects  a  right  against  their  sovereign  ?  I  believe 
that  in  the  United  States  a  citizen  can  sue  the  sovereign 
people.  But  at  any  rate  one  should  not,  as  Blackstone  does, 
identify  this  speculative  doctrine  with  our  English  rule.  Our 
king  is  not  in  the  jurist's  sense  sovereign,  there  is  no  reason 
in  the  nature  of  laws,  rights,  remedies,  why  our  king  should 
not  be  liable  to  be  sued,  and  even  to  be  prosecuted.  As 
a  matter  of  fact  the  Judicial  Committee  of  the  Privy  Council 
has  lately  held  that  according  to  the  law  in  force  in  Ceylon 
the  crown  can  be  sued  (9  Ap.,  Cas.  571);  it  is  said  that  kings 
of  Scotland  were  sued  by  their  subjects ;  it  has  been  said  that 
our  Henry  III  was  sued  by  his  subjects,  but  this  is  extremely 
doubtful,  and  I  do  not  think  that  our  law  has  ever  known  any 
mode  of  suing  the  king,  save  the  petition  of  right  and  some 
similar  proceedings  which  are  mere  appeals  to  the  king's 
conscience. 

Proceedings  on  a  petition  of  right  are  now  regulated  by  an 
act  of  1860  (23  and  24  Vie.,  c.  34).  The  petition  is  presented 
to  the  Secretary  for  the  Home  Department,  and  by  him  it  is 
submitted  to  the  queen.  If  she  thinks  fit  she  grants  her  fiat 


V  Petition  of  Right  483 

that  right  be  done,  and  then  there  is  in  effect  a  lawsuit 
between  the  petitioner,  or  suppliant  as  he  is  called,  and  the 
Attorney-General.  We  may  regard  it  as  a  constitutional 
usasre,  but  certainly  not  as  a  rule  of  law,  that  the  queen  ought 
not  to  withhold  her  fiat.  The  scope  of  this  remedy  by  petition 
of  right  seems  in  former  times  to  have  been  limited  to  cases 
in  which  the  king  was  in  possession  of  some  hereditament, 
or  some  specific  chattel  to  which  the  suppliant  claimed  a  title. 
The  judgment,  if  favourable  to  the  suppliant,  was  that  the 
king's  hands  be  removed  and  possession  be  restored  to  the 
suppliant — quod  manus  domini  regis  amoveantur  et  possessio 
restitnatur  petenti,  salvo  jure  domini  regis.  In  1874,  seemingly 
for  the  first  time,  the  question  was  decided  whether  this 
remedy  could  be  employed  as^  a  remedy  for  a  breach  of 
contract.  In  ^/wmas  .y.jfeg^tff.R.  10,  Q.B.  31)  the  suppliant 
asserted  that  he  had  invented  a  certain  system  of  heavy 
artillery,  and  that  in  consideration  of  his  placing  his  invention 
at  the  disposal  of  the  royal  ordnance  department,  the  Secretary 
of  State  for  War  had  promised  that  a  reward  should  be  given 
him,  the  amount  of  which  was  to  be  determined  by  the  Board 
of  Ordnance.  He  asserted  further  that  this  promise  had  been 
broken.  The  Attorney-General,  for  the  sake  of  argument, 
admitted  that  the  Secretary  for  War  had  authority  to  make 
this  contract  as  agent  for  the  queen ;  so  the  legal  point  was 
argued  whether  the  petition  of  right  could  be  used  as  a 
remedy  for  breach  of  contract.  Blackburn  delivered  a  very 
learned  judgment  holding  that,  despite  the  apparent  narrow- 
ness of  the  old  precedents,  which  dealt  solely,  or  almost 
solely  with  demands  for  specific  lands,  the  petition  of  right 
was  a  remedy  applicable  to  breaches  of  contract.  Judgment 
could  be  given  in  the  suppliant's  favour  to  the  effect  that  he 
was  entitled  to  a  particular  sum  by  way  of  damages.  Now  in 
these  days  breach  of  contract  is  likely  to  become  the  most 
common  and  useful  field  of  the  petition  of  right.  The  queen 
and  her  officers  are  no  longer  in  the  habit  of  seizing  land  upon 
all  manner  of  pretences;  there  are  few  pretences  available, 
escheat  is  very  rare,  but  contracts  with  high  officers  of  state, 
who  contract  on  behali  of  the  queen,  are  by  no  means  rare, 
and  often  involve  large  sums  of  money.  On  such  contracts 


484  Constitutional  History          PERIOD 

the  subject,  the  other  contractor,  has  a  remedy  The  court 
can  only  declare  that  he  is  entitled  to  such  and  such  relief, 
e.g.  to  ;£io,ooo  damages;  no  execution  can  issue  against  the 
queen.  Still  it  is  obvious  that  a  very  strong  moral  pressure 
can  thus  be  brought  to  bear  on  the  queen's  advisers.  It  would 
be  a  very  unpopular  thing  were  they  to  advise  the  queen  to 
prevent  any  really  arguable  question  coming  before  a  court 
of  law,  but  still  more  unpopular  to  deny  the  suppliant  that 
redress  to  which  he  had  been  declared  entitled  by  the  judgment 
of  a  court. 

(iv)  We  can  hardly  lay  too  much  stress  on  the  principle 
that  though  the  king  cannot  be  prosecuted  or  sued,  his 
ministers  can  be  both  prosecuted  and  sued,  even  for  what  they 
do  by  the  king's  express  command.  We  often  say  that  in 
this  country  royal  immunity  is  coupled  with  ministerial 
responsibility:  but  when  we  speak  of  ministerial  responsibility 
we  too  often  think  merely  of  the  so-called  responsibility  of 
ministers  to  parliament  Now  that  is  an  important  matter ;  it 
is  an  important  matter  that  our  king  cannot  keep  in  office 
advisers  who  have  not  the  confidence  of  the  majority  of  the 
House  of  Commons — in  the  last  resort  this  impossibility  could 
be  brought  home  to  him  by  a  refusal  to  grant  supplies,  or 
a  refusal  to  renew  the  Army  Act.  But  let  us  look  at  the 
matter  a  little  more  closely.  Strictly  speaking,  ministers  are 
not  responsible  to  parliament ;  neither  House,  nor  the  two 
Houses  together,  has  any  legal  power  to  dismiss  one  of  the 
king's  ministers.  But  in  all  strictness  the  ministers  are 
responsible  before  the  courts  of  law  and  before  the  ordinary 
courts  01  law,  and  they  are  there  responsible  even  for  the 
highest  acts  of  state  ;  for  those  acts  of  state  they  can  be  sued 
or  prosecuted,  and  the  High  Court  of  Justice  will  have  to 
decide  whether  they  are  legal  or  no.  Law,  especially  modern 
statute  law,  has  endowed  them  with  many  great  powers,  but 
the  question  whether  they  have  overstepped  those  powers  can 
be  brought  before  a  court  of  law,  and  the  plea  'this  is  an 
official  act,  an  act  of  state '  will  not  serve  them.  A  great  deal 
of  what  we  mean  when  we  talk  of  English  liberty  lies  in  this. 


V  Decline  of  the  Sheriff  485 

G.     The  Police  System. 

We  must  speak  briefly  of  the  system  by  which  order  is 
maintained,  and  suspected  persons  are  brought  to  justice,  even 
though  we  can  take  but  a  superficial  view  of  what  has  come  to 
be  a  great  department  of  law. 

The  decline  and  fall  of  the  sheriff's  office  has  already  been 
traced  down  to  the  seventeenth  century1.  During  the  whole 
of  our  period  this  process  of  decay  is  continued,  the  sheriff 
loses  function  after  function.  We  know  the  High  Sheriff 
now-a-days  as  a  country  gentleman,  who  (it  may  be  much 
against  his  will)  has  been  endowed  for  a  single  year  with  high 
rank,  and  burdened  with  a  curious  collection  of  disconnected 
duties,  the  scattered  fragments  of  powers  that  once  were  vast. 
He  receives  the  queen's  judges  on  their  circuits,  he  acts  as  a 
returning  officer  in  parliamentary  elections  for  his  county,  he 
executes  civil  judgments,  and  has  to  see  to  the  hanging  of 
those  who  are  appointed  to  die.  He  has  lost  almost  all  other 
duties.  Long  ago  the  institution  of  justices  of  the  peace 
gradually  deprived  him  of  all  penal  jurisdiction,  and  in  1887 
the  court  in  which  he  exercised  that  jurisdiction — the  sheriff's 
tourn — was  formally  abolished  (he  had,  I  think,  ceased  to 
hold  it  for  quite  two  centuries);  in  1846  such  civil  jurisdiction 
as  the  old  county  court  had  was  transferred  to  the  so-called 
new  county  courts  ;  in  1865  he  was  relieved  of  the  custody  of 
prisoners,  except  those  appointed  to  die.  I  think  that  I  have 
mentioned  what  now  are  his  main  duties.  Civil  execution  is 
the  most  important  of  them,  i.e.  the  seizing  and  selling  of 
lands  and  goods  in  order  to  satisfy  the  judgments  of  civil 
courts.  Such  duties  are  performed  for  him  by  an  under- 
sheriff,  but  the  sheriff  is  answerable  for  the  mistakes  of  his 
subordinates.  Some  fees  and  percentages  are  payable  tor 
this  work,  but  the  sheriff  has  no  salary,  and  is  always  a  loser 
by  his  office.  He  is  still  appointed  by  the  king,  who  chooses 
the  sheriffs  (pricks  the  sheriffs)  from  a  list  settled  at  a 
meeting,  at  which  some  of  the  judges  and  some  of  the 
rpinisters  are  present,  and  under  the  old  statutes,  of  which  we 
have  formerly  spoken,  he  can  hold  office  but  ior  one  year2. 

1  See  above,  pp.  232 — 4. 

8  See  M  ait  laud,  y  #.?//<:*  and  Police* 


486  Constitutional  History  PERIOD 

We  have  seen  how  in  old  times  it  was  one  of  his  main 
duties  to  pursue  and  arrest  malefactors,  and  also  how  this 
work  fell  more  and  more  under  the  control  of  the  Justices  of 
the  Peace,  the  arrests  being  actually  made  by  the  parish  or 
township  constables  under  warrants  of  the  justices.  The  old 
system  of  parish  or  township  constables  lingered  on  far  into  the 
nineteenth  century.  During  the  eighteenth  century,  this  and 
that  big  town  obtained  a  special  act  for  the  creation  of  a  paid 
force  of  watchmen,  and  London  began  to  get  a  force  of  paid 
constables  in  1792,  a  force  which  gradually  increased  in  size 
and  was  placed  more  and  more  directly  under  the  control  of 
the  Home  Secretary.  But  for  England  at  large,  the  only 
constabulary  was  that  old  parish  or  township  constabulary  of 
the  early  history  of  which  we  have  spoken.  So  late  as  1842 
an  effort  was  made  to  put  new  life  into  the  old  system.  By 
an  act  of  1842  (5  and  6  Vic,  c.  109)  the  general  principle  was 
put  upon  the  statute  book  that  every  able-bodied  man  resident 
within  any  parish,  between  the  ages  of  twenty-five  and  fifty- 
five,  rated  to  the  poor  rate  at  £4  or  more,  was  liable  to  serve 
as  constable  for  the  parish  ;  but  certain  classes  were  specially 
exempted,  and  the  list  of  exemptions  was  long.  Lists  of 
persons  liable  to  serve  were  to  be  laid  before  the  justices,  and 
they  were  thereout  to  appoint  so  many  constables  for  each 
parish  as  they  should  think  fit;  substitutes  were  allowed  ;  and 
a  man  who  had  served  in  person  or  by  substitute  was  exempt 
from  serving  again  until  every  other  person  liable  to  serve  had 
taken  his  turn  ;  he  was  not  bound,  as  a  general  rule,  to  act 
outside  his  parish ;  he  might  earn  certain  fees,  but  otherwise 
was  unpaid.  Thirty  years  later,  in  1872,  the  new  police  lorces 
having  been  created  in  the  meantime,  a  statute  ordained  that 
no  parish  constables  should  be  appointed  for  the  future,  unless 
the  justices  at  Quarter  Sessions  should  think  fit.  The  act  oi 
1842  can  still  be  put  in  force  if  need  be;  the  able-bodied  man, 
not  specially  exempted,  is  liable  to  be  constable  lor  his  parish 
or  to  find  a  substitute ;  but  practically  this  statute  is  never 
put  in  force.  Then  there  is  another  act  of  1831  in  force,  which 
enables  the  justices,  in  case  of  any  reasonable  apprehension  of 
riot  or  felony,  to  force  men  to  serve  as  special  constables.  A 
Secretary  of  State  has  even  greater  powers — he  can  oblige  the 


v  The  Police  487 

exempted  classes  to  serve  as  special  constables  ;  we  must  not 
regard  this  power  as  obsolete,  on  occasions  it  would  doubtless 
be  used. 

But  gradually  a  new  police  force  was  called  into  being. 
The  Metropolitan  force  was  created  in  1829  by  an  act  intro- 
duced by  Sir  Robert  Peel  In  1839  the  City  of  London  force 
was  created.  In  1835  occasion  was  taken  of  the  great  reform 
of  the  municipal  boroughs,  to  insist  that  every  such  borough 
should  have  a  paid  police  force.  In  1839  the  counties  were 
permitted,  in  1856  they  were  compelled,  to  create  paid  county 
forces.  Thus  by  the  beginning  of  1857  the  whole  of  England 
had  been  brought  within  the  new  system. 

There  is  no  one  police  force  for  the  whole  of  England,  but 
rather  a  number  of  distinct  local  forces.  Part  of  the  expense 
(if  the  force  is  reported  as  efficient)  is  paid  by  the  nation,  part 
is  paid  by  the  counties  and  boroughs.  The  various  forces  are 
annually  reviewed  by  royal  inspectors,  who  report  to  the 
Home  Secretary,  and  only  if  their  report  is  favourable,  does 
the  nation  contribute  to  the  expense.  There  are  some  very 
considerable  differences  between  the  various  forces.  Thus  in 
the  Metropolitan  district  there  is  very  perfect  centralization, 
no  *  local  authority'  has  anything  to  do  with  the  system. 
A  Commissioner  and  two  Assistant  Commissioners,  holding 
office  during  the  queen's  good  pleasure,  regulate  and  command, 
appoint  and  dismiss  the  constables,  but  a  supreme  supervisory 
control  is  reserved  to  the  Home  Secretary. 

But  take  a  county  force :  the  Home  Secretary  can  make 
general  rules  as  to  the  government,  pay  and  clothing  of 
constables;  but  the  justices  in  Quarter  Sessions,  with  the 
Secretary's  consent,  determine  the  number  of  the  force,  and 
appoint  and  can  dismiss  the  chief  constable1.  The  chief 
constable  has  the  general  command  of  the  force,  subject  to 
the  lawjul  orders  of  the  justices  in  Quarter  Sessions,  and  he 
at  his  pleasure  can  dismiss  any  of  his  subordinates. 

1  Under  the  Local  Government  Act  of  1888  (51  and  52  Viet,  c.  41)  the 
County  police  was  placed  under  the  general  control  of  the  Standing  Joint 
Committee  of  Quarter  Sessions  and  the  County  Council.  The  control  over 
individual  constables  is  however  retained  by  the  Quarter  Sessions  and  even  by 
individual  justices.  See  Jenks,  An  Outline  of  English  Local  Government, 
pp.  179—81-  p 


488  Constitutional  History  PERIOD 

Let  us  then  consider  briefly  the  position  of  a  police  con- 
stable, he  has  peculiar  duties  and  peculiar  powers,  and  is 
subjected  to  a  peculiar  discipline.  Take  this  last  point  first. 
The  peculiar  discipline  to  which  he  is  subject  is  not  nearly  so 
stringent  as  that  of  military  law;  we  have  no  court  martial 
for  the  policeman.  A  county  constable  can  be  dismissed  at 
the  will  of  the  chief  constable.  The  chief  constable,  if  he 
thinks  him  remiss  or  negligent  in  his  duties,  can  reduce  him 
in  rank,  or  fine  him  one  week's  pay.  On  a  summary  conviction 
for  neglect  01*  violation  of  duty,  he  can  be  fined  ,£10  or 
condemned  to  a  month's  hard  labour ;  but  on  the  whole  he 
has  been  left  much  to  the  general  law,  and  if  guilty  of  any 
offence  against  it,  can  be  treated  like  another  offender. 

Now  looking  at  his  powers  and  duties,  we  find  that  he  has 
in  the  first  place  powers  and  duties  concerning  the  arrest  of 
offenders.  It  is  his  duty  to  execute  warrants  for  arrest  issued 
by  the  justices,  and  in  so  doing  he  is  protected.  Unless  there 
is  some  flagrant  illegality  apparent  in  the  warrant  he  is  bound 
to  obey  it,  and  safe  in  obeying  it.  But  then  without  any 
warrant  he  may,  in  certain  cases,  arrest  suspected  persons. 
What  those  cases  are,  you  will  have  to  learn  some  day  when 
you  study  criminal  procedure.  You  will  find  that  in  this 
respect  every  person,  every  member  of  the  public  has  certain 
powers,  but  that  a  constable  has  greater  powers.  The  distinc- 
tion between  felonies  and  misdemeanours  here  plays  a  large 
part.  For  example,  there  are  a  number  of  misdemeanours  for 
which  a  man  may  be  arrested  without  warrant,  if  he  is  caught 
in  the  act  by  a  constable,  while  a  person  not  a  constable 
would  not  be  safe  in  arresting  him.  You  must  remember  this, 
that  it  does  not  follow  that  because  I  have  committed  a  crime 
therefore  I  can  be  arrested  without  warrant  either  by  anyone, 
or  by  a  constable.  If  I  have  committed  murder  anyone  may 
arrest  me  without  a  justice's  warrant,  if  I  am  drunk  and 
disorderly  a  constable  may  arrest  me  without  a  warrant ;  but 
if  my  crime  is  perjury  or  bribery,  it  will  be  unlawful  to 
arrest  me  without  warrant.  He  who  does  so,  whether  he  be 
a  constable  or  no,  does  an  unlawful  act,  does  me  a  wrong;  and 
he  does  a  dangerous  act,  for  I  may  lawfully  resist  him,  his 
attack  is  unlawful  and  my  resistance  is  lawful. 


V         Powers  and  Duties  of  Constables      489 

Now  it  is  in  these  peculiar  powers  of  arrest,  and  in  the 
duty  to  exercise  them,  that  lies  the  chief  difference  between 
the  constable  and  the  private  man — he  may  lawfully  make 
arrests  which  the  private  man  cannot  make  lawfully.  But 
statutes  have  gradually  been  heaping  other  powers  and  duties 
upon  police  constables,  e.g.  empowering  them  to  enter  public- 
houses  to  detect  violation  of  the  Licensing  Acts.  If  it  occurs 
tp  parliament  that  steam  thrashing-machines  are  dangerous 
things  that  ought  to  be  fenced,  then  it  passes  an  act  saying 
that  'any  constable  may  at  any  time  enter  on  any  premises 
on  which  he  has  reasonable  cause  to  believe  that  a  thrashing- 
machine  is  being  worked  contrary  to  the  provisions  of  this 
act,  for  the  purpose  of  inspecting  such  machines.'  Examples 
might  be  indefinitely  multiplied. 

We  may  pass  to  a  few  words  about  the  provision  that  our 
law  makes  for  the  maintenance  of  order  in  extreme  cases,  and 
we  may  start  with  this,  that  it  is  the  common  law  right  and 
duty  of  all  persons,  whether  constables  or  no,  to  keep  the 
peace,  and  according  to  their  power  to  disperse,  and  if  necessary 
arrest,  those  who  break  it.  From  an  early  time  the  common 
law  was  supplemented  by  statutes,  statutes  of  the  Tudor 
reigns  which  made  it  felony  for  twelve  persons  or  more  to 
continue  together  riotously  for  an  hour  after  they  had  been 
ordered  to  disperse  by  a  justice  of  the  peace.  These  statutes 
were  temporary,  and  expired  at  the  death  of  Elizabeth ;  in 
1714  they  were  replaced  by  the  famous  Riot  Act  (i  Geo.  I, 
st.  2,  c.  5),  which  is  still  in  force.  It  makes  it  felony  for  twelve 
rioters  to  continue  together  for  an  hour  after  the  reading  of 
a  proclamation  by  a  magistrate  ordering  them  to  disperse. 
It  then  requires  the  magistrates  to  seize  and  apprehend  all 
persons  so  continuing  together,  and  it  provides  that  if  any  of 
them  happen  to  be  killed,  maimed  or  hurt  in  dispersing,  seizing 
or  apprehending  them,  the  magistrates  and  those  who  act  under 
their  orders  shall  be  held  guiltless.  This  act  then  gives  to  the 
magistrate  and  those  who  act  under  his  orders  special  protection 
in  case  rioters  remain  together  for  an  hour  after  the  reading  of 
the  proclamation  (commonly  but  erroneously  called  the  read- 
ing of  the  Riot  Act),  but  it  does  not  say,  nor  does  it  mean,  that 
force,  if  necessary  armed  force,  may  not  be  used  until  then. 


49°  Constitutional  Hisfory  PERIOD 

As  regards  the  employment  of  soldiers  for  the  purpose  of 
putting  down  riots,  we  have  no  special  statutes,  it  is  left  to  the 
common  law  and  to  the  Riot  Act.  The  general  principle  seems 
to  be  this,  that  the  soldier,  like  every  other  citizen,  is  bound 
to  do  what  in  him  lies  to  preserve  the  peace,  and  if  necessary 
to  suppress  unlawful  force.  'The  military  subjects  of  the 
king/  said  Tindal,  C.  J., '  like  his  civil  subjects,  not  only  may 
but  are  bound  to  do  their  utmost  of  their  own  authority  to 
prevent  the  perpetration  of  outrage,  to  put  down  riot  and 
tumult,  and  to  preserve  the  lives  and  property  of  the  people1/ 
Our  law  does  not  even  say  that  military  officers  must  not  act 
without  the  command  of  the  civil  magistrates ;  it  is  prudent  not 
to  do  so;  but  in  a  great  emergency  a  military  officer  is  entitled, 
nay  bound,  to  suppress  unlawful  force  by  force.  A  person 
may  be  indicted  for  not  doing  what  he  could  to  suppress  a 
riot :  magistrates  can  be,  and  have  been,  indicted  for  neglect 
of  their  duty  of  preserving  the  peace. 

In  connexion  with  this  subject  a  few  last  words  should  be 
said  of  martial  law.  We  have  already  seen  that  under  the 
provisions  of  the  Army  Act  which  is  called  into  force  year  by 
year  we  have  among  us  a  large  number  of  persons  who  are 
living  under  a  special  law.  This  law  is  to  be  found  partly  in  the 
Army  Act  itself,  partly  in  articles  which  can  be  made  from 
time  to  time  by  the  queen  in  exercise  of  powers  given  by  that 
act ;  and  it  seems  probable  that,  apart  from  the  act,  the  queen 
has  some,  not  very  well  defined,  power  of  making  Articles  of 
War  for  any  troops  that  she  is  lawfully  keeping.  This  special 
law  for  soldiers  is  administered  by  tribunals  known  as  courts 
martial,  and  is  frequently  spoken  of  as  martial  law ;  but  in 
the  act  it  is  called  'military  law/  and  it  seems  very  desirable 
that  we  should  adopt  that  term  rather  than  the  other.  For 
at  times  the  belief  has  prevailed  that  there  is  some  other  body 
of  rules  known  as  martial  law,  some  body  of  rules  that  the 
king  or  his  officers  could  in  cases  of  emergency  bring  into 
force  by  way  of  proclamation  and  apply  to  persons  who  are 
not  soldiers  and  who  therefore  are  not  subject  to  that  special 
code  of  military  law  of  which  we  have  just  been  speaking. 

1  Charge  to  the  Grand  Jury  of  Bristol  in  1832.    State  Trials,  N.S.,  vol.  in, 
p.  5.     See  also  Dicey,  Law  of  the  Constitution,  6th  edn.,  Note  vi,  pp.  460 — 2. 


V  Martial  Law  491 

Now  it  may,  I  believe,  be  pretty  confidently  denied  that 
there  is  any  such  body  of  rules.  In  the  first  place  you  will 
remember  that  the  Petition  of  Right,  after  reciting  that  com- 
missions under  the  great  seal  had  of  late  been  issued  to 
certain  persons  to  proceed  'according  to  the  justice  of  martial 
law/  declared  that  such  commissions  were  illegal,  and  prayed 
that  no  commissions  of  the  like  nature  should  issue  in  the 
future.  Then  again  our  annual  acts  legalizing  the  army 
declare  that  'no  man  can  be  forejudged  of  life  or  limb  or 
subjected  to  any  punishment  within  this  realm  by  martial  law 
in  time  of  peace/  The  words  4  in  time  of  peace/  which  were 
not  in  the  earliest  Mutiny  Acts,  certainly  seem  to  suggest  that 
in  time  of  war  men  may  be  punished  by  martial  law.  But  we 
can  find  a  sufficient  meaning  for  them  by  saying  that  in  time 
of  war  soldiers  may  be  punished  by  martial  law;  that  is  to 
say,  apart  from  the  Army  Acts  the  crown  would  have  some 
power  in  time  of  war  of  maintaining  discipline  in  its  troops 
by  regulations  similar  to  those  of  our  present  military  code. 
It  must  be  confessed  however  that  a  parliament — an  Irish 
parliament  after  the  rebellion  of  1798 — has  spoken  of  martial 
law  as  though  it  were  some  known  body  of  rules  that  might 
in  times  of  great  emergency  be  applied  to  persons  who  are 
not  soldiers — that  there  can  be  such  a  thing  as  a  proclamation 
of  martial  law.  If  however  we  ask,  where  are  we  to  find  this 
body  of  rules?  what  is  martial  law?  we  shall  hardly  get  an 
answer  to  our  question.  When  considered  the  matter  seems 
to  resolve  itself  into  this — it  is  the  right  and  duty  of  every 
subject  to  aid  in  the  suppression  of  unlawful  force ;  it  is 
more  especially  the  right  and  duty  of  magistrates  and  peace 
officers  of  all  degrees  to  do  so.  The  common  law  defines, 
though  from  the  nature  of  the  case  not  very  exactly,  the 
occasions  on  which  force  may  be  repelled  by  force,  and  the 
amount  of  force  that  can  be  used  ;  and  in  great  emergencies 
it  may  become  necessary  that  even  death  should  be  inflicted, 
and  deliberately  inflicted,  for  the  suppression  of  disorder.  A 
proclamation  of  martial  law  can  have  no  other  legal  effect 
than  this — it  is  a  proclamation  by  the  king,  or  by  persons 
holding  office  under  the  king,  announcing  that  a  state  of 
things  exists  in  which  it  has  become  necessary  that  force  shall 


492  Constitutional  History  PERIOD 

be  repelled  and  suppressed  by  force;  it  is  a  warning  that 
the  part  of  our  common  law  which  sanctions  such  repulsion 
and  suppression,  has  come  into  play.  A  court  of  law,  an 
ordinary  court  of  law,  may  afterwards  have  to  judge  whether 
really  there  was  a  legal  justification  for  these  high-handed 
acts  which  were  done  in  the  name  of  peace  and  order;  but 
doubtless  it  might,  and  in  appropriate  circumstances  would, 
take  into  consideration  the  fact  that  those  who  suffered  by 
such  acts  had  had  full  notice  that  they  were  about  to  be  done. 
But  suppose  one  of  the  rebels  captured,  there  is  no  court  that 
can  try  him  save  the  ordinary  criminal  courts  of  the  country. 
In  particular  circumstances  it  might  perhaps  become  necessary 
to  shoot  him  in  order  that  he  might  not  escape  or  be  rescued, 
and  undoubtedly  in  such  a  case,  if  time  permitted,  it  would 
be  well  for  those  who  had  him  in  custody  to  satisfy  them- 
selves that  he  was  a  rebel.  But  any  inquiry  that  they  might 
make  about  this  could  not  have  the  effect  of  a  trial  before  a 
competent  tribunal ;  it  would  be  a  wise  precaution,  but  not 
a  judicial  proceeding  having  force  as  such.  He  would  not 
really  be' tried  and  condemned  by  any  body  of  rules  known 
as  martial  law — we  know  not  where  to  look  for  any  such  body 
of  rules — if  lawfully  put  to  death,  he  would  be  put  to  death 
under  a  rule  of  our  common  law,  which  justifies  the  suppres- 
sion by  force  of  unlawful  force.  As  to  the  whole  of  this 
matter  see  the  opinion  of  Edwin  James  and  Fitzjames  Stephen 
in  the  case  of  Governor  Eyre  (Forsy  th,  Cases  and  Opinions  on 
Constitutional  Law >  p.  5 Si)1. 


H.     Social  Affairs  and  Local  Government. 

There  is  a  vast  domain  of  our  public  law  at  which  we 
ought  to  take  a  brief  glance ;  we  ought  to  know  at  least  that 
it  exists,  that  its  boundaries  are  being  extended  year  by 
year,  and  that  it  is  constantly  becoming  of  greater  importance. 
The  title  which  I  have  chosen,  'Social  Affairs  and  Local 
Government/  is,  I  fear,  not  very  satisfactory,  but  you  will  gain 
a  notion  of  what  I  mean  as  time  goes  on. 

1  See  also  Dicey,  Law  of  the  Constitution^  6th  edn.,  Note  xn,  pp.  502—19. 


V  The  Commission  of  the  Peace        493 

And  first  a  few  words  as  to  the  organs  of  local  govern- 
ment. We  have  already  said  a  little  about  the  history  of  the 
justices  of  the  peace.  Instituted  in  the  reign  of  Edward  III, 
their  functions  have  from  that  time  to  the  present  become 
ever  more  and  more  miscellaneous.  At  the  present  day  their 
Quarter  Sessions  are  a  court  for  the  trial  of  criminal  cases ; 
two  justices  can  form  a  court  of  summary  jurisdiction  to 
punish  any  of  those  thousands  of  petty  offences  which  can 
now  be  punished  without  trial  by  jury ;  they  hold  the  pre- 
liminary examination  of  persons  accused  of 'indictable  crimes, 
they  can  commit  the  accused  to  prison  or  bail  him  for  trial. 
We  have  seen  also  how  they  have  a  control  over  the  con- 
stabulary, and  how  they  are  bound  to  keep  the  peace  and 
suppress  riots.  These  functions  of  theirs  fall  under  the  head- 
ings— The  Administration  of  Justice  and  The  Police  System. 
But  they  acquired  other  functions  of  the  most  miscellaneous 
character.  Already  in  Elizabeth's  day,  Lambard,  who  wrote 
an  excellent  book  on  the  office  of  the  justices,  expressed  a 
fear  that  they  were  being  overladen  with  work,  that  their 
backs  would  be  broken  by  these  '  not  loads,  but  stacks  of 
statutes1/  His  'stacks  of  statutes'  would  seem  very  small  to 
our  eyes.  During  the  last  two  centuries  parliament  has  con- 
tinued to  heap  work  upon  the  justices.  The  Commission  of 
the  Peace  had  become  the  one  vigorous  and  healthy  local 
institution.  The  old  communal  courts  of  the  hundred  and  | 
the  shire  had  fallen  into  utter  decay ;  they  had  become  <?' 
best  courts  for  petty  debts  held  by  the  under-sheriff.  A  not 
representative  assembly  of  freeholders  was  an  aniiquatea 
institution  quite  unsuited  to  the  wants  of  the  time,  and  no 
attempt  was  made  to  introduce  representative  government 
into  local  aflairs.  The  municipal  corporations  again  were 
becoming  utterly  unfit  for  any  governmental  work.  With  the 
view  of  getting  favourable  parliaments  the  Tudor  and  Stuart 
kings  had  spoilt  the  constitution  of  the  boroughs ;  by  their 
charters  they  had  vested  the  local  government  along  with  the 
parliamentary  iranchise  in  small  oligarchical  bodies — mayor, 
aldermen  and  councillors — who  had  the  right  to  fill  up  the 

1  Lambard,  Eirenarcha^  Book  I,  c.  7. 


494  Constitutional  History  PERIOD 

vacancies  in  their  own  bodies.  These  bodies  became  hope- 
lessly corrupt ;  some  belonged  to  the  crown  and  returned  to 
parliament  the  nominees  of  the  ministry ;  others  belonged  to 
great  landowners,  Whig  or  Tory,  and  returned  their  candidates; 
others  sold  themselves  from  time  to  time  in  open  market. 
The  justices,  on  the  other  hand,  were  competent  members  of 
the  ruling  class,  and  nothing  was  more  natural  than  that  a 
parliament  of  landowners  (and  remember  that  in  the  eighteenth 
century  members  of  the  House  of  Commons  had  to  be  land- 
owners) should  trust  them  with  all  manner  of  duties  and 
governmental  powers ;  some  to  be  exercised  in  their  Quarter 
Sessions,  others  to  be  exercised  by  a  justice  or  two  justices 
out  of  Quarter  Sessions. 

A  word  about  the  appointment  and  qualification  of  justices. 
They  were  and  still  are  appointed  by  the  king  (in  practice  by 
the  Lord  Chancellor),  who  usually  acts  upon  the  recommenda- 
tion   of  the    Lord    Lieutenant  of    the   county.     They   held 
and  still  hold  office  merely  during  good  pleasure.     Gradually, 
however,  we  have  come  to  expect  that  a  justice  will  not  be 
removed  save  for  some  misconduct     If  George  III  dismisses 
justices  on  political  grounds,  we  look  back  upon  this  as  an* 
unconstitutional  act     From  of  old  it  has  been  required  that 
justices  should  have  landed  property  in  the  county;  in  1439 
(18  Hen.  VI,  c.  n)  the  minimum  value  was  fixed  at  £20 
por  annum.     This  in  the  eighteenth  century  had  become  very 
lowi  .and  in    1732  was  raised  to  ;£ioo  per  annum,  because 
as  the\act  (5  Gco.  II,  c.  18)  says  'the  constituting  of  persons 
of  mea\n  estate  to  be  justices  of  the  peace  may  be  highly 
prejudicial  to  the  public  welfare/     Not  until  1875  (38  anc* 
39  Vic.;  c.  54)  was  this  relaxed,  and  then  only  to  the  extent 
that  thie  occupation  of  a   dwelling  house  assessed  at  £100 
per  ar/mum  should  also  be  a  qualification1.     In  the  Middle 
Age.c,  the  justices  (like  members  of  parliament)  were  not 
unpaid,  they  were  entitled  to  four  shillings  a  day  at  Quarter 
Sessions;  but  this  sum  having  become  small,  like  the  wages 
of  the  members,  was  not  demanded,  and  practically  the  office 
became    honorary:    in    1855    the    payment    was  abolished. 

1  The  property  qualification  of  county  justices  has  now  been  removed  by  the 
Justice*  01  tne  Peace  Act  oi  1906,  6  Ed.  VII,  c.  16. 


V  Municipal  Boroughs  495 

Thus  the  local  government  of  England  came  to  be  govern- 
ment by  country  gentlemen.  But  observe  -that  there  was 
nothing  feudal  or  patrimonial  in  it.  The  country  gentleman 
did  not  do  justice  or  govern  the  county  in  his  own  name 
or  as  a  landlord  ;  he  was  one  of  the  justices  assigned  to 
keep  the  king's  peace;  the  justices  were  expected  to  obey 
orders  sent  to  them  in  the  king's  name  by  the  Secretary 
of  State,  and  the  courts  of  law,  which  were  never  very 
friendly  to  the  summary  jurisdiction,  were  very  ready  to 
entertain  complaints  as  to  any  irregularities  committed  by 
the  justices. 

By  degrees  the  justices  of  the  county  became  very 
numerous.  In  the  Middle  Ages  the  demand  is  that  there 
shall  be  some  six  or  eight  in  every  shire.  In  Elizabeth's  day 
this  was  already  far  exceeded.  At  the  present  time  there 
are,  I  believe,  more  than  eight  hundred  in  Lancashire,  and 
even  Rutland  has  twenty -five*  but  about  one-half  of  these  are 
but  titular  justices ;  they  have  not  taken  the  requisite  oaths 
and  so  become  acting  magistrates. 

Much  about  their  governmental  powers  we  shall  not  be 
able  to  say;  still  we  shall  return  to  them  hereafter.  Mean- 
while we  have  to  notice  that  in  the  days  of  the  great  Reform 
Bill  a  new  current  of  legislation  sets  in  which  has  gone  on 
flowing  ever  since — the  creation  of  representative  local  in- 
stitutions. 

The  first  great  achievement  that  we  will  notice  is  the 
municipal  reform  of  1835.  All  the  boroughs  in  England, 
except  London  and  a  few  small  places  which  we  need  hardly 
notice,  were  reformed  and  were  reconstituted  according  to  a 
uniform  model,  and  power  was  given  to  Queen  in  Council  to 
give  the  same  constitution  to  other  towns  as  yet  unincorpo- 
rated. We  have  now  about  two  hundred  and  fifty  incorporated 
boroughs — 'municipal  boroughs/  I  have  before  this  asked  you 
to  notice  that  the  parliamentary  and  municipal  organizations 
have  now  fallen  quite  apart.  In  the  later  Middle  Ages,  after 
the  representation  of  towns  in  parliament  had  begun,  every 
borough  returned  its  two  burgesses  to  parliament ;  you  will 
remember  what  the  sheriff's  instructions  were,  he  was  to  send 
two  burgesses  from  every  borough.  In  course  of  time  indeed 


496  Constitutional  History  PERIOD 

this  became  the  test  whether  a  town  was  a  borough  or  no  ; 
those  towns  were  boroughs  which  sent  members  to  parliament 
Now-a-days  the  two  things  are  quite  distinct;  a  borough  fully 
constituted  for  municipal  purposes  may  send  no  members  to 
parliament;  and  again  members,  who  are  known  as  borough 
members,  may  be  returned  by  a  district  which  is  not  under 
the  government  of  any  municipal  corporation.    We  distinguish 
then  between  the  ' parliamentary  borough'  and  the  'municipal 
borough/     The  former  is  but  an  electoral  district ;  it  is  of  the 
latter  that  we  have  to  speak.    Now  the  municipal  constitution 
is  briefly  this.     The  corporation  consists  of  the  mayor,  alder- 
men and  burgesses ;  thus  the  proper  style  of  the  corporation 
of  Cambridge   is   'the   mayor,   aldermen   and   burgesses   of 
Cambridge/    In  case  of  a  city  (generally  a  municipal  borough 
which  is  also  a  bishop's  see)  we  speak  of  citizens  instead  of 
burgesses.     Every   person   who   occupies   a  house   or  other 
building   for  which   he   or  she'  pays   rates  is  entitled  to  be 
a  burgess,  and  becomes  so  on  having-  his  name  put  upon  the 
burgess  roll.     Women  may  be  burgesses.     The  main  right  of 
the  burgess  is  to  vote  in  the  election  of  the  town  council. 
The  government  of  the  borough  is  vested  in  the  mayor,  alder- 
men and  councillors.     The  number  of  councillors  is   fixed 
upon  the  incorporation  of  the  borough.     The  councillors  arc 
elected  by  the  burgesses  and  hold  office  for  three  years  ;  since 
1 872  the  election  has  been  by  ballot.    The  number  of  aldermen 
is  one-third  of  the  number  of  councillors.     They  are  elected 
by  the  council,  and  hold  office  for  six  years.     The  mayor  is 
elected   by  the  council,  and  holds  office   for  a  year.     This 
governing  body,  consisting  of  mayor,  aldermen  and  councillors, 
has  very  considerable  powers;  it  manages  the  property  of  the 
corporation  (which  in  some  cases  is  considerable);   it  must 
maintain  a  proper  police  force ;  it  must  see  to  the  paving  and 
lighting  of  the  town,  and  so  forth ;  and  it  enjoys  some  legisla- 
tive power,  for  it  may  make  such  bye-laws  as  seem  meet  for 
the  good  rule  and  government  of  the  borough  and  for  the 
prevention  and  suppression  of  nuisances.    A  fine  of  £$  is  the 
heaviest  punishment  that  it  can  denounce  for  the  breach  of  its 
bye-laws.     Power,  however,  is  given  to  the  Queen  in  Council 
to  disallow  any  bye-law  in  whole  or  in  part. 


v  The  Poor  Law  497 

The  extent  to  which  the  borough  is  exempted  out  of  the 
jurisdiction  of  the  county  justices  varies  somewhat  from 
borough  to  borough ;  some  boroughs  have  a  separate  com- 
mission of  the  peace  and  a  court  of  Quarter  Sessions  held  by 
an  officer  known  as  the  Recorder.  Others  have  a  commission 
of  the  peace  but  no  court  of  Quarter  Sessions.  Others  again 
have  no  separate  commission  of  the  peace,  but  in  every  borough 
the  mayor  is  ex  officio  a  justice  and  remains  so  for  one  year 
after  he  has  ceased  to  be  mayor.  Then  again  some  boroughs 
maintain  their  own  police,  while  others  are  *  policed  by  the 
county.1  Into  these  variations  we  must  not  go.  What  we 
are  concerned  to  observe  is  the  growth  of  democratic,  repre- 
sentative government.  Under  the  act  of  1835  in  all  the  great 
towns  of  England,  except  London,  there  was  erected  a  body 
consisting  of  persons  elected  by  the  ratepayers  and  by  the 
representatives  of  the  ratepayers  which  was  armed  with  many 
governmental  powers. 

Another  great  step  was  made  one  year  earlier,  in  1834. 
The  administration  of  the  poor  law,  which  down  to  this  time 
had  been  carried  on  partly  by  parochial  officers,  overseers  of 
the  poor,  partly  by  the  justices  of  the  peace,  had  for  a  long 
time  past  become  very  unwise  and  extravagant.  A  thorough 
reform  was  necessary  if  England  was  not  to  be  made  bankrupt 
by  its  paupers.  The  country  was  mapped  out  into  districts, 
consisting  of  a  number  of  parishes,  which  were  to  be  united  for 
many  purposes  of  the  poor  law  :  of  these  '  Poor  Law  Unions' 
there  are  now  about  650.  Each  Union  has  a  Board  of  Guardians 
of  the  Poor.  The  justices  of  the  peace  resident  in  the  Union 
are  ex  officio  guardians,  and  besides  there  are  a  number  of 
elected  guardians.  They  are  elected  by  the  ratepayers 
according  to  a  scheme  of  plural  voting ;  a  voter  may  have 
from  one  to  six  votes  according  to  his  property  qualification : 
property  rated  at  less  than  ^50  gives  one  vote,  property  rated 
at  £100  two  votes,  and  so  on  up  to  six1.  The  constitution 
therefore  of  a  Board  of  Guardians  is  not  so  democratic  as  that 

1  By  the.  Local  Government  Act  of  1894  (56  and  57  Viet.,  c.  73,  sec.  20) 
ex  officio  guardians  were  abolished,  and  each  elector  was  entitled  to  give  one  vote 
and  no  more  for  each  of  any  number  of  persons  not  exceeding  the  number  to  be 
elected. 

M.  32 


498  Constitutional  History  PERIOD 

of  a  municipal  corporation.  The  Board  has  very  large  powers 
in  administering  relief  of  the  poor  within  the  district  of  the 
union.  But  I  want  you  to  observe  that  every  reform  of  local 
government  has  hitherto  meant  an  addition  to  the  powers  of 
the  central  government.  A  large  control  over  the  whole  poor 
law  system  was  in  1834  given  to  certain  Poor  Law  Com- 
missioners ;  they  had  wide  powers  of  checking  the  actions  of 
the  guardians,  and  even  of  legislating ;  they  could  issue  rules, 
orders  and  regulations  as  to  all  matters  relating  to  the  relief 
of  the  poor.  It  was  expected  that  the  commission  would 
only  be  necessary  for  a  time,  but  it  was  renewed  and  renewed 
again  and  developed  first  into  the  permanent  Poor  Law 
Board,  and  then  into  the  existing  Local  Government  Board, 
which  as  we  have  seen  is  but  nominally  a  board,  for  its 
President,  a  cabinet  minister,  can  and  habitually  does  exercise 
all  its  most  multifarious  powers.  These  two  processes  have 
been  going  on  side  by  side;  on  the  one  hand  we  get  new 
organs  of  local  government,  on  the  other  hand  we  get  new 
organs  of  central  government,  the  organs  of  central  govern- 
ment being  some  or  other  of  those  high  officers  of  state  who 
according  to  constitutional  usage  form  the  cabinet 

The  elaborate  system  of  sanitary  law  which  exists  in  our 
own  days  we  can  carry  back  only  to  1848.  The  main  stages 
in  its  development  are  marked  by  acts  of  1848,  1858  and 
1875  ;  it  is  now  represented  chiefly  by  a  great  statutory  code, 
the  Public  Health  Act  of  1875.  Throughout  England  local 
sanitary  authorities  have  been  created.  In  some  places  they 
are  the  municipal  corporations,  in  others  again  the  guardians 
of  the  poor,  in  others  again  they  are  Boards  of  Health  elected 
by  the  ratepayers  for  the  purpose.  The  central  authority  is 
the  Local  Government  Board.  Then  we  have  the  great 
educational  system  introduced  by  the  act  of  1870.  It  is 
worked  by  school  boards  and  school  attendance  committees 
elected  by  the  ratepayers  and  controlled  by  the  Education 
Department,  a  board  consisting  of  cabinet  ministers  whose 
powers  are  exercised  chiefly  by  the  Lord  President  of  the 
Council,  and  the  Vice-President  of  the  Department1.  Then 

1  The  Education  Act  of  1902  abolished  the  School  Boards  and  entrusted 
Education  to  the  'local  Education  authority,'  i.e.  the  Council  of  a  County  or 


V  County  Councils  499 

again  we  have  elected  Highway  Boards  and  elected  Burial 
Boards1. 

As  a  general  result  we  have  a  pretty  wild  confusion  not 
easily  to  be  described  in  elementary  lectures.  For  one  thing 
we  may  note  that  each  of  these  systems  of  which  we  have 
spoken  had  a  geography  of  its  own.  In  1834  when  the  new 
Poor  Law  was  passed  and  the  country  was  mapped  out  into 
Poor  Law  Unions  the  fatal  mistake  was  committed  of  dis- 
regarding the  old  territorial  divisions,  the  county  boundary. 
Often  a  Union  extends  into  two  or  more  counties.  We  have 
now  one  geography  for  civil  justice,  another  for  criminal 
justice,  another  for  police,  another  for  poor  law,  another  for 
sanitary  law  and  so  forth. 

Perhaps  we  have  lived  to  see  the  beginning  of  the  end  of 
this  disorder.  I  refer  to  the  great  Local  Government  Act  of 
1888  (51  and  52  Vic.,  cap.  41).  The  result  of  this  has  been 
to  add  to  the  number  of  the  organs  of  local  government  by 
creating  County  Councils.  The  constitution  of  the  boroughs 
has  been  taken  as  a  model  for  the  counties.  Each  county 
has  a  Council  elected  by  the- ratepayers,  and  to  this  Council 
have  been  transferred  all  or  most  of  those  powers  of  the 
justices  of  the  peace  that  we  can  in  any  sense  call  adminis- 
trative. The  government  of  the  county  police  force  is  given 
to  the  Council  and  the  court  of  Quarter  Sessions  jointly,  and 
is  to  be  exercised  by  a  joint  committee.  On  the  whole  we  may 
say  that  it  is  intended  that  the  Council  shall  be  the  govern- 
mental assembly  of  the  shire,  while  the  justices  both  in  and 
out  of  Quarter  Sessions  keep  all  those  powers  which  can  be 
called  judicial.  I  need  not,  however,  warn  you  again  that 
these  are  not  the  words  of  the  statute  book ;  it  goes  into 

County  borough,  and  also  (but  only  for  elementary  purposes)  to  the  Council  of  a 
borough  with  more  than  10,000  and  to  the  Council  of  an  Urban  District  with  more 
than  20,000  inhabitants. 

1  The  Local  Government  Act  of  1894  created  Parish  Councils  and  District 
Councils.  The  Parish  Council  is  empowered  to  adopt  the  Burial  Acts,  and  where 
the  area  of  a  Burial  Board  is  identical  with  that  of  a  rural  parish,  the  Burial  Board 
will  merge  in  the  Council.  The  District  Councils  inherit  the  functions  formerly 
discharged  by  the  Highway  and  Sanitary  Boards.  An  Urban  District  Council 
may  also  by  consent  or  by  Order  in  Council  become  the  sole  burial  authority 
within  its  district. 

32—2 


500  Constitutional  History  PERIOD 

minute  details,  and  in  England  it  would  often  be  hard  enough 
to  say  on  general  principles  whether  a  power  was  to  be 
deemed  administrative  or  deemed  judicial.  But  this  (it  is 
expected)  is  by  no  means  all  that  the  County  Councils  will 
in  course  of  time  do  for  us.  Listen  to  this  clause  (sec.  10) : 
it  is  an  extremely  good  instance  of  the  way  in  which  parlia- 
ment legislates  for  us  now-a-days,  f  It  shall  be  lawful  for  the 
Local  Government  Board  to  make  from  time  to  time  a 
provisional  order  for  transferring  to  County  Councils  any 
such  powers,  duties,  and  liabilities  of  H.M.  Privy  Council, 
a  Secretary  of  State,  the  Board  of  Trade,  the  Local  Govern- 
ment Board,  or  the  Education  Department,  or  any  other 
government  department,  as  are  conferred  by  or  in  pursuance 
of  any  statute  and  appear  to  relate  to  matters  arising  within 
the  county  and  to  be  of  an  administrative  character.1  Such  a 
provisional  order  will  require  an  act  of  parliament  to  put  it  in 
force.  The  hope,  I  suppose,  is  that  some  measure  of  de- 
centralization will  become  possible,  a  hope  which  can  only 
be  fulfilled  if  the  County  Councils  prove  themselves  capable 
and  honest.  For  the  moment,  however,  this  act  only  adds  to 
the  existing  confusion  ;  we  have  one  new  '  local  authority/ 
but  the  older  local  authorities  still  exist :  the  guardians  of 
the  poor,  the  school  boards,  the  sanitary  authorities,  the 
highway  boards  and  so  forth.  /It  may  be  that  some  day  a 
lecturer  will  be  able  to  state  in  Wnple  and  general  terms  the 
chief  outlines  of  our  local  government ;  but  that  time  has  not 
come  yet.  That  between  the  township  or  parish  and  the 
shire  there  should  be  some  intermediate  district  is  an  idea 
which  crops  up  again  and  again  in  all  our  legislation  and 
schemes  of  legislation :  it  is,  we  may  say,  the  old  idea  of  the 
hundred.  Some  day  it  may  become  possible  for  a  lecturer  to 
say  England  is  divided  into  shires,  the  shire  into  hundreds, 
the  hundred  into  townships ;  each  township,  each  hundred, 
each  shire  has  one  and  only  one  organ  of  local  government 
appropriate  to  itself:  but  that  time  seems  far  distant. 

This  you  will  say  (and  I  will  not  contradict  you)  is  a  very 
poor  lecture,  but  I  do  think  it  worth  our  while  just  to  see  that 
there  are  these  vast  tracts  of  modern  constitutional  law,  though 
we  can  do  little  more  than  barely  state  their  existence.  I  say 


V  Subordinate  Government  501 

of  constitutional  law,  for  it  seems  to  me  impossible  so  to  define 
constitutional  law  that  it  shall  not  include  the  constitution  of 
every  organ  of  government  whether  it  be  central  or  local, 
whether  it  be  sovereign  or  subordinate.  It  must  deal  not 
only  with  the  king,  the  parliament,  the  privy  council,  but  also 
with  the  justices  of  the  peace,  the  guardians  of  the  poor,  the 
Boards  of  Health,  the  School  Boards,  and  again  with  the 
constitution  of  the  Treasury,  of  the  Education  Department, 
of  the  Courts  of  Law,  Naturally  it  is  with  the.  more  exalted 
parts  of  the  subject  that  we  are  chiefly  concerned ;  they  are 
the  more  intelligible  and  the  more  elementary :  but  we  must 
not  take  a  part  for  the  whole  or  suppose  that  matters  are 
unimportant  because  we  have  not  yet  had  time  to  explore 
them  thoroughly.  Year  by  year  the  subordinate  government 
of  England  is  becoming  more  and  more  important.  The  new 
movement  set  in  with  the  Reform  Bill  of  1832;  it  has  gone 
far  already  and  assuredly  it  will  go  farther.  We  are  becoming 
a  much  governed  nation,  governed  by  all  manner  of  councils 
and  boards  and  officers,  central  and  local,  high  and  low, 
exercising  the  powers  which  have  been  committed  to  them 
by  modern  statutes. 

It  may,  I  think,  be  instructive  in  this  context  to  say  a  few 
words  as  to  the  active  duties  which  our  law  lays  upon  the 
generality  of  Englishmen,  instructive  because  I  think  that 
their  extent  is  often  neglected  by  students  of  jurisprudence. 
By  active  duties  I  mean  duties  which  consist  in  the  doing  of 
something,  and  not  in  the  leaving  of  something  undone.  Now 
the  great  mass  of  our  ordinary  criminal  law  is  made  up  of 
prohibitions,  of  the  imposition  of  negative  duties;  its  language 
is  '  Thou  shalt  do  no  murder,'  *  Thou  shalt  not  steal/  and  so 
forth.  It  does  not  say  '  Thou  shalt  succour  thy  neighbour  in 
distress* — I  commit  no  crime  by  not  pulling  my  neighbour  out 
of  the  water,  though  thereby  I  could  save  his  life  without 
wetting  my  feet.  So  again  our  law  as  to  civil  injuries, 
*  Torts '  as  we  call  them,  consists  of  prohibitions — I  am  not  to 
assault  or  slander  or  defraud  my  neighbour,  trespass  on  his 
land  or  damage  his  goods.  Generally  it  takes  some  contract 
or  some  special  relationship  or  some  office  to  create  an  active 
duty.  In  the  greater  number  of  cases  in  which  anyone  is 


502  Constitutional  History  PERIOD 

bound  actively  to  do  something,  he  is  bound  because  he  has 
agreed  to  be  bound.  In  some  other  cases  he  is  bound  because 
of  a  standing  relationship  between  him  and  the  person  for 
whose  benefit  he  must  act,  such  a  relationship,  for  instance,  as 
that  of  father  and  child.  So  again  there  are  duties  arising  out 
of  the  holding  of  a  public  office.  But  there  are  cases  in  which 
active  duties  are  cast  by  law  upon  a  person  irrespective  of  any 
contract,  of  any  special  relationship,  or  of  any  public  office. 

First  there  is  a  comprehensive  duty  or  class  of  duties 
consisting  in  the  payment  of  taxes  and  rates.  Think  for  one 
moment  how  great  a  group  of  duties  we  have  here.  If  your 
imagination  fails  you,  flatter  yourselves  that  you  are  young 
and  happy.  The  generality  of  Englishmen  have  to  pay  first 
the  taxes  which  parliament  directly  imposes,  and  then  the 
rates  which  it  empowers  local  boards  and  so  forth  to  raise. 
During  the  nineteenth  century  the  system  of  local  taxation 
has  rapidly  grown  ;  one  can  be  taxed  by  many  different  bodies, 
for  many  different  purposes,  for  the  relief  of  the  poor  (that  is 
an  old  matter),  the  maintenance  of  a  police  force,  the  improve- 
ment of  sanitary  conditions,  for  public  education,  for  the 
erection  of  town  halls,  public  baths,  public  libraries,  and  very 
many  other  purposes.  But  it  is  not  on  duties  that  can  be 
discharged  by  the  payment  of  money  that  I  would  at  this 
moment  dwell.  There  are  other  active  duties :  some  ancient, 
some  modern,  some  imposed  by  the  common  law,  some  by 
statute. 

From  military  duties  we  are  practically  free.  We  have 
already  traced  the  history  of  this  matter.  There  is  no  power 
to  force  men  to  serve  as  soldiers  except  under  the  ballot 
clauses  of  the  Militia  Act  which  are  suspended  year  by  year. 
There  is  a  prerogative  power  of  pressing  sea-faring  men  for 
the  royal  navy,  but  this  has  not  been  exercised  for  a  long  time 
past.  The  Englishman  is  still  by  statute  bound  to  serve  as  a 
parish  constable  or  find  a  substitute  if  he  is  between  twenty- 
five  and  fifty-five  years  of  age,  and  is  rated  to  the  poor  rate  at 
£4  or  more,  and  does  not  belong  to  certain  special  exempted 
classes  :  the  power  of  forcing  men  to  serve  as  parish  constables 
might  be  put  in  force  if  the  justices  at  Quarter  Sessions 
thought  fit,  biit  as  a  matter  of  fact  owing  to  the  creation  of 


V  Active  Duties  of  Citizens  503 

the  professional  police  forces  it  is  found  unnecessary.  But 
one  may  be  forced  to  serve  as  a  special  constable  if  occasion 
requires  for  a  particular  occasion,  and  the  (Home)  Secretary 
can  order  that  even  the  exempted  classes  may  be  sworn  in. 
The^e  matters  are  regulated  by  a  statute  of  1831. 

Then  again  the  common  law  requires  everyone  to  give 
active  aid  to  a  parish  constable  in  the  apprehension  of 
offenders :  within  recent  years  a  man  has  been  indicted  and 
convicted  for  not  aiding  the  police  when  they  called  for  his 
assistance  (^?.  v.  Sherlock^  I.  C.C.R.,  2ofi  We  may  probably 
lay  down  a  more  general  rule  and  say  that  it  is  the  legal  duty 
of  every  subject  to  do  all  that  in  him  lies  to  suppress  a  riot, 
and  that  one  might  be  indicted  for  neglecting  this  duty. 
Again  in  general  one  is  not  under  any  legal  duty  to  reveal  a 
crime  that  has  come  to  one's  knowledge — so  long  as  there  is 
no  aiding  and  abetting,  no  harbouring  of  the  criminal,  so  long 
as  one  simply  does  nothing  one  is  guilty  of  no  offence.  But 
it  is  laid  down  in  the  books  that  high  treason  is  an  exception: 
if  I  know  that  high  treason  has  been  committed  and  do  not 
within  a  reasonable  time  give  information  thereof,  I  commit 
the  crime  known  as  misprision  of  treason  and  may  be  im- 
prisoned for  life. 

Then  look  at  jury  service :  of  old  this  was  incumbent  on 
Ihe  freeholders.  Under  modern  acts  it  is  cast  upon  those 
who  occupy  houses  of  a  certain  value  or  have  interests  in  land 
of  a  certain  value ;  speaking  generally  the  person  liable  to 
jury  service  must  be  a  householder  rated  at  £20  or  have  an 
interest  in  land  worth  £10  or  £20  according  to  the  nature  of 
the  interest ;  but  all  burgesses  are  bound  to  serve  on  the  jury 
at  the  Quarter  Sessions  for  the  borough. 

Then  again  one  of  the  public  duties  that  our  law  enforces 
is  the  duty  of  giving  evidence.  A  person  can  be  compelled 
to  testify  in  criminal  proceedings  and  in  civil  actions  and  also 
in  many  proceedings  of  many  kinds  which  are  inquisitorial 
rather  than  judicial.  For  instance  one  may  be  summoned  as 
a  witness  not  only  before  the  ordinary  law  courts,  before 
ecclesiastical  courts,  courts  martial,  but  also  before  either 

1  Sherlock  was  fined  five  pounds  by  the  Quarter  Sessions  at  Lewes 
The  Court  for  Crown  Cases  Reserved  affirmed  the  conviction. 


504  Constitutional  History  PERIOD 

House  or  a  committee  of  either  House  of  Parliament ;  or  again 
to  take  examples  of  what  is  becoming  common,  before  the 
persons  appointed  by  the  Board  of  Trade  to  investigate  the 
causes  of  a  railway  accident,  or  by  the  Home  Office  to  investi- 
gate the  causes  of  an  explosion.  If  one  thus  summoned  will 
not  attend,  he  can  generally  be  punished  for  a  contempt  in 
a  very  summary  way.  In  civil  actions  a  witness  need  not 
appear  unless  a  reasonable  sum  is  tendered  to  him  for  his 
expenses,  but  no  such  tender  is  necessary  in  a  criminal 
proceeding 

Then  again  it  is  a  very  general,  if  somewhat  antiquated, 
doctrine  of  the  common  law  that  a  person  is  bound  to  serve 
the  crown  in  all  manner  of  offices.  We  see  this  chiefly  applied 
in  the  cases  of  sheriffs :  a  person  who  has  sufficient  land  in  the 
county  to  qualify  him  for  the  office  (a  very  vaguely  defined 
amount)  is  bound  to  serve  if  he  be  appointed  and  can  be  fined 
if  he  refuses.  This  is,  I  think,  but  an  instance  of  a  general 
principle  which  exists,  though  it  is  seldom  put  in  force. 
Could  a  man  be  punished  for  refusing  to  become  Chancellor 
of  the  Exchequer  or  Secretary  of  State?  It  is  absurd  to 
consider  such  a  case,  but  I  imagine  that  he  could.  But  in 
particular  cases  statute  has  stepped  in  to  enforce  this  doctrine: 
a  qualified  person  elected  to  serve  as  an  officer  of  a  municipal 
corporation  can  be  fined  for  not  accepting  the  office,  thus  one 
elected  to  the  office  of  mayor  may  be  fined  £100. 

But  now  glance  for  one  moment  at  the  active  duties  which 
modern  statutes  have  cast  upon  Englishmen  in  general.  An 
Englishman  has  a  child  born  to  him  ;  within  42  days  (says  an 
act  of  1874:  37  and  38  Vic.,  c.  88)  he  must  register  its  birth  at 
the  proper  office,  if  he  does  not  he  can  be  fined.  Within 
three  months,  says  an  act  of  1867  (30  and  31  Vic.,  c.  84),  he 
must  have  that  child  vaccinated,  otherwise  he  can  be  fined. 
Then,  says  an  act  of  1876  (39  and  40  Vic.,  c.  79),  'it  shall  be 
the  duty  of  the  parent  of  every  child  to  cause  such  child  to 
receive  elementary  instruction  in  reading,  writing  and  arith- 
metic, and  if  such  parent  fail  to  perform  such  duty  he  shall 
be  liable  to  such  orders  and  penalties  as  are  provided  by 
this  act.1 

I  take  these  instances  of  active  duties  not  to  be  discharged 


V  Negative  Ditties  of  Citizens          505 

by  the  payment  of  money,  because  it  seems  a  stronger  thing 
to  command  a  man  to  do  something  than  to  prohibit  him  from 
doing  something.  I  want  to  warn  you  against  taking  too 
narrow  a  view  of  the  field  of  modern  English  law,  and  in  so 
doing  I  may  be  of  some  service  to  you  in  your  study  of 
general  jurisprudence.  Do  not  imagine  that  English  law  is 
exhausted  by  those  departments  of  it  that  you  can  study 
here — the  law  of  crimes,  the  law  of  property,  torts,  and  con- 
tracts, and  that  part  of  constitutional  law  which  is  concerned 
with  king  and  parliament.  No,  there  are  vast  departments  of 
law  lying  outside  these  boundaries ;  some  of  them  belong  to 
constitutional  law,  others  perhaps  may  be  called  administrative 
law;  for  the  most  part  they  are  statutory  and  of  recent  creation, 
the  work  of  the  last  fifty  years :  but  their  importance  is  very 
great  For  turn  from  active  duties  to  negative  duties,  duties 
which  consist  in  forbearance  only  and  see  how  we  are  sur- 
rounded by  prohibitions :  the  list  of  offences  for  which  one 
may  be  punished  summarily  by  justices  of  the  peace  is 
enormous.  Then  if  one  takes  up  any  business  or  employ- 
ment, if  one  begins  to  build  a  house  or  thinks  to  open  a 
lodging-house,  or  keep  a  trading-ship  or  be  a  baker  or  a 
chimney-sweep,  straightway  one  comes  in  contact  with  a 
mass  of  statutory  rules,  and  if  one  keeps  all  the  rules  expressly 
laid  down  by  statute  still  one  is  not  safe,  one  may  come  across 
the  rules,  orders  and  regulations  which  some  Secretary  of  State 
or  central  board  has  been  empowered  to  make  or  the  bye-laws 
of  a  municipal  borough  or  of  a  local  sanitary  authority.  And 
then  you  may  have  to  consider  whether  you  are  bound  by 
those  rules  or  that  bye-law :  for  remember  that  the  Secretary 
of  State  or  the  municipal  corporation  has  no  unlimited  power 
of  legislation  ;  it  is  but  a  delegated  power,  and  if  the  rule  or 
bye-law  is  not  authorized  by  the  power  you  may  break  it  with 
impunity,  and  the  judges  will  say  that  it  is  invalid.  If  you 
take  up  a  modern  volume  of  the  reports  of  the  Queen's  Bench 
division,  you  will  find  that  about  half  the  cases  reported  have 
to  do  with  rules  of  administrative  law;  I  mean  with  such 
matters  as  local  rating,  the  powers  of  local  boards,  the  granting 
of  licenses  for  various  trades  and  professions,  the  Public  Health 
Acts,  the  Education  Acts  and  so  forth.  Now  these  matters  you 


506  Constitutional  History  PERIOD 

cannot  study  here  ;  they  are  not  elementary,  they  are  regulated 
by  volumes  upon  volumes  of  statutes.  Only  do  not  neglect  their 
existence  in  your  general  conception  of  what  English  law  is. 
If  you  do,  you  will  frame  a  false  and  antiquated  notion  of  our 
constitution.  That  constitution  does  not  now-a-days  consist 
merely  of  king  and  parliament,  privy  council,  courts  of  law 
and  some  purely  executive  officers,  such  as  sheriffs,  obeying 
their  commands.  We  have  changed  all  that  since  the  first 
Reform  Act.  The  governmental  powers,  the  subordinate 
legislative  powers  of  the  great  officers,  the  Secretaries  of  State, 
the  Treasury,  the  Board  of  Trade,  the  Local  Government 
Board,  and  again  of  the  Justices  in  Quarter  Sessions,  the 
Municipal  Corporations,  the  Guardians  of  the  Poor,  School 
Boards,  Boards  of  Health  and  so  forth  ;  these  have  become  of 
the  greatest  importance,  and  to  leave  them  out  of  the  picture 
is  to  make  the  picture  a  partial  one-sided  obsolete  sketch. 


J.     The  Church. 

We  ought  to  devote  a  little  time  to  the  history  and  the 
present  position  of  the  church,  looking  of  course  at  its  legal 
side.  We  speak  of  the  church  as  being  established  by  law. 
This  phrase  has  a  correct  meaning,  still  it  may  suggest  a 
wrong  view  of  history,  it  may  suggest  that  at  some  time  or 
another  the  state  chose  out  one  among  a  number  of  competing 
faiths,  established  it  and  endowed  it.  Of  course  this  is  not 
true:  the  church  has  a  continuous  history  from  a  time  when 
there  were  no  competing  faiths,  when  the  idea  of  choosing  a 
religion  would  have  seemed  a  profane  absurdity.  The  medieval 
theory  of  the  relation  between  church  and  state  seems  this, 
that  they  are  independent  organisms  consisting  nevertheless 
of  the  same  units.  Every  man,  we  may  say,  is  a  member  of 
both— except  indeed  the  Jews,  whose  position  in  England 
before  they  were  banished  by  Edward  I,  was  altogether 
anomalous ;  they  were  not  members  of  the  church,  but  then 
they  were  hardly  in  any  sense  members  of  the  state — they 
lived  under  special  laws  of  their  own  protected  by  the  kings, 
to  whom  they  were  financially  useful,  against  the  very  general 
hatred  of  the  people ;  they  are  an  exception  which  illustrates 


V  The  Medieval  Church  507 

the  rule.  But  though  consisting  of  the  same  units,  church  and 
state  were  not  one ;  each  had  its  laws,  its  legislature,  its  courts 
of  justice,  its  proper  sphere  of  action.  Their  relation  to  each 
other  constituted  a  standing  denial  of  that  theory  of  sovereignty 
which  has  become  orthodox  in  our  own  times.  And  it 
is  well  for  students  of  jurisprudence  to  observe  that  such  a 
denial  does  not  mean  anarchy.  From  time  to  time  there 
were  disputes  between  the  two  powers ;  it  is  sufficient  to 
recall  the  quarrel  between  Henry  II  and  Archbishop  Thomas; 
and  through  several  centuries  there  is  a  constant  border 
warfare  going  on  between  the  temporal  and  the  ecclesiastical 
courts  as  to  the  exact  limits  of  their  several  domains — but 
normally  the  relation  between  the  two  powers  is  that  of 
peace. 

I  spoke  of  the  two  organisms  as  consisting  of  the  same 
units;  this,  however,  is  not  quite  true,  and  only  perhaps 
because  it  was  not  quite  true  was  a  prolonged  continuance  of 
the  situation  possible.  The  English  church  was  but  a  branch 
or  member  of  the  church  catholic  and  Roman.  King  and 
parliament  might  be  supreme  over  the  English  state,  but  the 
provincial  convocations  were  not  supreme  over  the  English 
church;  they  acknowledged  the  authority  of  the  Pope  and 
general  councils  of  the  church.  To  a  large  extent  the  English 
church  claimed  and  enjoyed  what  we  may  describe  as  Home 
Rule,  and  about  certain  matters  a  quarrel  with  the  See  of 
Rome  was  maintained  from  century  to  century ;  in  particular 
the  Pope  was  constantly  striving  to  interfere  with  ecclesiastical 
appointments  in  a  way  which  English  churchmen  as  well  as 
English  statesmen  warmly  resented.  For  full  a  hundred  and 
fifty  years  before  Henry  VIII  broke  with  the  Pope  the  English 
parliament  had  been  legislating  at  intervals  against  what  it 
regarded  as  the  usurpations  of  the  See  of  Rome — interferences 
with  rights  of  patronage,  and  all  this  without  a  suspicion  of 
heresy  or  schism. 

Let  us  look  briefly  at  the  relation  between  the  two 
organisms  as  it  was  at  the  end  of  the  Middle  Ages.  In  the 
first  place  we  notice  that  the  rulers  of  the  church  have  a  place 
in  the  supreme  body  of  the  state.  The  bishops  and  abbots 
constitute  a  good  half  of  the  House  of  Lords.  Their  position 


508  Constitutional  History  PERIOD 

in  that  body  is,  however,  somewhat  ambiguous ;  if  they  are 
prelates  of  the  church  they  are  also  tenants  in  chief  of  the 
crown,  and  many  abbots  have  shaken  off  the  duty  of  going  to 
parliament  by  the  plea  that  they  are  not  tenants  in  chief. 
Then  again  the  inferior  clergy  are  summoned  to  parliament 
by  the  praemunientes  clause ;  they  do  not  attend,  but  they 
tax  themselves  in  the  two  principal  convocations,  usually 
making  a  grant  proportioned  to  that  which  the  commons  have 
made  in  parliament.  In  these  convocations  they  enjoy  a 
certain  power  of  legislating  as  to  spiritual  matters,  of  making 
canons,  and  these  canons  x:an  be  enforced  against  the  laity  as 
well  as  the  clergy  in  the  ecclesiastical  courts. 

These  ecclesiastical  courts  have  a  manifold  jurisdiction. 
In  the  first  place  there  is  the  discipline  of  the  clergy,  and  this  is 
a  wide  field — for  not  only  is  the  purely  ecclesiastical  discipline 
within  their  cognizance,  but  we  have  to  remember  that  they 
are  the  only  courts  which  can  punish  an  ordained  clerk  for 
felonies,  murder,  robbery  and  so  forth — to  treason,  it  is  said, 
the  benefit  of  clergy  does  not  extend.  Then  again  they  have 
large  fields  of  jurisdiction  which  do  not  seem  to  us  very 
spiritual — all  testamentary  causes  including  the  distribution 
of  the  goods  and  chattels  of  intestates  are  within  their  sphere, 
and  again  all  matrimonial  causes.  Not  content  with  this 
they  have  long  sought  to  obtain  a  general  jurisdiction  in 
matters  of  contract ,  in  this  they  have  failed,  the  temporal 
courts  have  warned  them  off  that  field,  but  in  consequence 
have  been  obliged  to  enlarge  their  own  notions  of  the  law  of 
contract  Besides  all  this  these  courts  exercise  a  very  wide 
jurisdiction  over  what  we  may  call  immorality — forms  of 
social  misdoing  to  which  the  lay  courts  pay  no  heed,  such  as 
fornication  and  incest.  In  the  medieval  law  of  the  lay  courts 
we  find  no  such  headings  as  slander  and  libel ;  these  matters 
are  dealt  with  as  sins  by  the  tribunals  of  the  church. 

The  means  which  these  courts  have  of  enforcing  their 
decrees  are  in  theory  spiritual  Over  the  clergy  they  have 
large  powers,  being  able,  for  example,  to  degrade  a  clerk  from 
his  orders.  Over  the  laity  they  exercise  authority  by  means 
of  penance  and  excommunication.  In  the  last  resort,  however, 
the  secular  arm  gives  them  its  aid.  If  the  excommunicated 


V  Ecclesiastical  Jurisdiction  509 

person  remained  contumacious  for  forty  days,  this  was  signi- 
fied to  the  king's  court,  which  then  issued  a  writ  commanding 
the  sheriff  to  imprison  him  until  he  should  satisfy  the  claims 
of  the  church.  Excommunication  itself  had  very  serious  legal 
consequences,  for  the  excommunicated  person  was  unable  to 
bring  any  action  even  in  the  temporal  courts:  it  was  a 
sufficient  answer  to  him  to  say  'You  are  excommunicated/ 
In  this  respect  his  condition  was  no  better  than  that  of  an 
outlaw. 

The  existence  of  these  ecclesiastical  courts  involved  the 
existence  of  a  considerable  class  of  ecclesiastical  lawyers, 
canon  lawyers,  familiar  with  the  jurisprudence  of  those  courts 
— a  jurisprudence  which  was  distinct  from  that  of  the  lay 
tribunals.  It  included  the  body  of  canon  law  published 
in  the  Decretum  of  Gratian  and  its  successive  supplements, 
the  more  recent  canons  of  general  councils  and  the  canons 
published  by  the  English  archbishops  in  their  provincial 
convocations.  Canon  law  was  taught  in  the  universities  ;  the 
common  law  was  not ;  its  students  acquired  their  learning  in 
London,  in  the  Inns  of  Court,  societies  of  common  lawyers 
which  had  gradually  grown  up  and  provided  more  or  less 
efficiently  for  legal  education1. 

As  to  heresy,  for  a  long  time  we  had  practically  no  law, 
for  we  had  no  heretics.  Probably  it  was  considered  that  a 
heretic,  if  one  occurred,  would  be  properly  burned  ;  in  1222 
we  hear  of  a  deacon  being  burned — he  had  turned  Jew  for  the 
love  of  a  Jewess8.  But  practical  law  against  heresy  we  had 
none  and  needed  none  until  the  rise  of  Lollardy  at  the  end  of 
the  fourteenth  century.  In  1382  we  have  our  first  statute 
against  heresy — heretics  are  to  be  kept  in  prison  until  they 
satisfy  the  claims  of  the  church.  An  act  of  1401  went  further 
— a  heretic  who  refused  to  abjure  was  to  be  publicly  burned. 
In  1414  a  further  act  was  passed  ;  it  made  heresy  an  indictable 
offence — but  the  accused  person  is  to  be  tried  in  the  bishop's 
court  It  was  under  this  statute  that  most  of  the  executions 
of  the  fifteenth  and  sixteenth  centuries  took  place. 

1  See  Maitland,  Roman  Canon  Law  in  the  Church  of  England. 
a  See  Maitland's  witty  article,    The  Deacon  and  the  Jewess  or  Afoslacy  at 
Common  Law>  in  the  Law  Quarterly  Review  for  April  1886. 


5io  Constitutional  History  PERIOD 

We  have  also  to  think  of  the  church  as  being  endowed  : 
but  this  phrase  again  must  not  lead  us  astray — there  never 
was  any  body  of  men  called  the  church  which  held  property. 
First  and  last  the  church  has  never  been  a  corporation,  holding 
or  capable  of  holding  property.  'Church  property/  if  we 
allow  ourselves  that  phrase,  consisted  and  consists  of  the 
various  properties  of  a  large  number  of  different  persons :  e.g. 
the  Bishop  of  Ely  as  such  had  land,  the  Abbey  of  S.  Albans 
as  such  had  land,  the  parson  of  Trumpington  as  such  had 
land — a  very  large  part  indeed  of  the  land  in  this  country  was 
held  by  religious  houses,  though  from  Edward  I's  day  onward 
the  statutes  of  mortmain  had  prevented  the  increase  of  that 
quantity;  but  any  land  belonging  to  these  religious  houses 
belonged  to  them  and  to  them  only.  And  as  with  land  so 
with  tithe — in  a  remote  age  the  general  Christian  duty  of 
devoting  a  tenth  of  one's  property  to  the  service  of  God  had 
become  defined  as  a  burden  on  land  ;  this  piece  of  land  owed 
tithe  to  the  parson  of  the  parish  church,  or  its  tithe  had  been 
appropriated  to  some  monastery,  but  there  was  no  body,  no 
corporation,  entitled  to  the  aggregate  of  the  tithes  of  England. 

As  regards  ecclesiastical  patronage  we  have  to  remember 
that  at  an  early  time  this  had  come  to  be  regarded  as  property. 
The  right  to  appoint  the  parson  of  a  church,  or  rather  to 
present  him  to  the  bishop  for  appointment,  the  advowson  of 
the  church  (advocatio  ecclesiae)  was  freely  bought  and  sold ; 
often  it  belonged  to  the  lord  of  the  manor,  but  it  might  be 
held  separately  from  the  manor.  Over  this  form  of  property, 
for  such  we  must  call  it,  the  royal  courts  claimed  jurisdiction, 
and  already  in  the  twelfth  century  they  had  made  good  their 
point.  Thus  the  line  between  the  spiritual  and  the  ecclesi- 
astical jurisdictions  was  not  drawn  just  where  we  might 
expect  to  find  it  The  provision  of  a  parson  for  the  parish 
we  might  regard  as  a  religious  trust.  On  the  other  hand  we 
might  think  that  testamentary  causes  had  little  about  them 
that  was  spiritual;  but  in  the  Middle  Ages  all  litigation 
regarding  wills  was  matter  for  the  courts  Christian,  while 
over  the  right  to  present  to  ecclesiastical  benefices  the  king's 
courts  exercised  an  exclusive  jurisdiction. 

The  great  series  of  events  which  we  know  as  the  Protestant 


V  Effects  of  the  Reformation  5 1 1 

Reformation  altered  profoundly  the  relation  between  church 
and  state;  still  it  would  be  easy  for  us  to  exaggerate  the 
extent  of  the  definite  legal  changes.  The  old  legal  organiza- 
tion of  the  church  with  its  bishops,  its  convocations  and  its 
courts,  was  for  the  most  part  preserved,  though  it  was  brought 
under  subjection  to  king  and  parliament.  We  have  only  time 
to  deal  very  briefly  with  subsequent  history.  I  will  make  an 
attempt  to  sum  it  up  under  several  headings. 

In  the  first  place  we  have  the  subjection  of  the  church  to 
the  state.  In  1534,  Henry  VIII  having  wrung  from  the 
clergy  a  reluctant  promise  that  they  would  never  make  any 
new  canons  without  the  royal  assent,  this  rule  was  confirmed 
by  statute  (25  Hen.  VIII,  c,  19).  In  the  next  year  it  was 
declared  by  statute  that  the  king  our  sovereign  lord,  his  heirs 
and  successors,  kings  of  this  realm,  shall  be  taken,  accepted, 
and  reputed  the  only  supreme  head  in  earth  of  the  Church 
of  England  (26  Hen.  VIII,  c.  i).  These  acts,  I  think  we  may 
say,  mark  the  moment  at  which  the  church  was  brought  under 
the  state.  At  the  same  time  the  Church  of  England  was 
severed  from  the  Church  of  Rome.  It  had  already  been  made 
unlawful  to  pay  to  the  Pope  the  annates  and  first-fruits  which 
he  had  been  accustomed  to  receive,  appeals  to  Rome  from 
the  ecclesiastical  courts  were  forbidden,  the  English  chapters 
were  to  elect  as  bishops  the  persons  recommended  by  the 
king ;  if  they  would  not  do  so,  the  king  was  to  have  power 
to  make  the  appointment  by  letters  patent.  The  smaller 
monasteries  were  dissolved  in  1536,  the  greater  in  1539:  the 
effect  that  these  measures  had  upon  the  constitution  of  the 
House  of  Lords  we  have  already  observed1.  The  result  of 
these  measures  at  a  time  when  the  doctrines  of  the  church 
were  being  called  in  question  was  that  in  1539  parliament 
found  itself  legislating  about  religious  doctrine — legislating 
this  time  in  a  conservative  sense.  The  Act  of  the  Six  Articles 
made  it  highly  penal  to  deny  certain  articles  of  the  faith,  in 
particular  the  real  presence.  Henry  did  not  intend  that 
his  political  measures  should  lead  to  any  renunciation  of 
catholic  dogma  or  catholic  ritual.  But  under  Edward  VI  the 
reforming  party  got  the  upper  hand.  In  1548  we  have  the 

1  See  above,  p.  -238. 


512  Constitutional  History  PERIOD 

first  Act  of  Uniformity — a  certain  book  of  common  prayer 
has  been  drawn  up  and  is  to  be  used  in  all  churches.  Any 
parson  who  does  not  use  the  book  or  uses  any  other  form  of 
liturgy  is  to  be  punished  in  a  lay  court — on  a  third  conviction 
he  is  even  to  be  imprisoned  for  life.  All  other  books  of 
prayer  are  to  be  destroyed ;  all  images  in  churches  are  to  be 
destroyed ;  bishops  are  to  be  appointed  simply  by  letters 
patent  Religion  has  now  become  an  affair  of  statute.  But 
the  power  which  makes  statutes  can  unmake  them,  as  the 
reformers  learned  under  Mary.  The  legislation  of  the  two 
last  reigns  was  swept  away,  and  the  reformers  were  heretics, 
who  could  be  proceeded  against  under  the  Lancastrian  statutes. 
That  legislation  was  restored  under  Elizabeth,  except  that 
she  did  not  assume,  nor  have  her  successors  assumed,  the  title 
'Head  of  the  Church/  and  except  also  that  bishops  were  to  be 
made  under  the  act  of  Henry  VIII  which  preserved  the  form 
of  capitular  election,  not  under  that  of  Edward  VI  which 
abolished  it.  The  reign  begins  with  Acts  of  Supremacy  and 
Uniformity.  The  former  is  called  an  '  Act  to  restore  to  the 
Crown  the  ancient  jurisdiction  over  the  Estate  Ecclesiastical 
and  Spiritual,'  and  among  other  things  it  founded  the  Court  of 
High  Commission  and  imposed  on  all  ecclesiastics  an  oath  ac- 
knowledging the  queen's  supremacy  and  renouncing  all  foreign 
authority.  The  Act  of  Uniformity  imposed  a  book  of  common 
prayer — to  use  any  other  liturgy  was  made  highly  penal. 
In  substance  this  act  (1559)  has  fixed  the  law  from  that  time 
to  the  present  day.  The  present  prayer  book,  however,  is  one 
ordained  by  a  statute  of  1662 — by  the  Act  of  Uniformity  passed 
after  the  Restoration — a  revised  edition  of  the  earlier  prayer 
book.  You  should  therefore  understand  that  a  clergyman  of 
the  Church  of  England  in  reading  the  service  is  performing  a 
statutory  duty ;  it  would  be  penal  for  him  to  read  any  other 
service.  In  1871  it  was  thought  desirable  to  alter  the  lectionary 
of  the  service ;  the  new  lectionary  was  introduced  by  statute, 
34  and  35  Vic.,  c.  37  ;  it  is  a  schedule  to  an  act  of  parliament. 
It  is  under  a  special  proviso  of  the  act  of  1662  that  the 
University  sermon  can  be  preached  without  any  reading  of 
the  book  of  common  prayer.  I  say  this  in  order  to  illustrate 
the  fact  that  the  church  services  are  statutory.  There  is  no 


V  The  Convocations  513 

body  which  has  any  power  to  alter  them  except  king  and 
parliament. 

This  leads  us  to  speak  of  the  convocations.  In  Henry  VII Fs 
day  parliament  began  to  pass  statutes  confirming  the  grants 
of  the  clergy — the  clerical  subsidies1 ;  but  the  convocations 
continued  to  grant  their  taxes  until  the  Civil  War  and  began 
the  practice  again  after  the  Restoration.  In  1662  the  practice 
was  quietly  abandoned,  and  parliament  began  to  tax  the 
clergy  directly.  During  the  reign  of  William  III  a  quarrel 
broke  out  between  the  upper  and  lower  houses  of  the  convo- 
cation of  Canterbury.  The  two  houses  took  different  views 
of  ecclesiastical  policy,  but  the  exact  point  of  dispute  was  the 
question  whether  the  archbishop  could  prorogue  the  houses. 
The  quarrel  went  on  until  1717  when  the  two  houses  were 
at  issue  over  the  Bangorian  controversy.  They  were  never 
again  summoned  for  business  until  1861 — though  between 
1717  and  1741  formal  meetings  were  held.  Thus  for  a  whole 
century  and  more  the  Church  of  England  (if  any  such  body  can 
be  said  to  exist)  had  no  representative  assembly,  no  power  of 
making  rules  for  itself.  The  convocations  cannot  now  meet 
without  the  royal  summons  ;  they  can  make  no  canons  without 
the  royal  assent.  And  further,  since  the  days  of  James  I  it  has 
been  the  doctrine  of  the  law  courts  that  canons  even  when  they 
have  received  the  royal  assent  are  not  binding  on  the  laity. 
Thus  the  legal  powers  of  the  convocations  are  extremely  limited; 
they  may  dibcubs  and  deliberate,  but  they  can  do  very  little. 

In  reviewing  the  present  position  of  the  church  it  would 
be  necessary  to  chronicle  that  the  bishops,  or  rather  some  of 
the  bishops,  sit  in  the  House  of  Lords,  that  no  clergyman  can 
sit  in  the  House  of  Commons,  but  that  there  is  nothing  to 
prevent  him  from  voting  in  a  parliamentary  election.  As 
regards  the  disqualification  from  being  elected,  we  have  to 
remember  that  the  clergy  are  still  summoned  to  parliament 
under  \hzpraemunientes  clause.  In  1801  Home  Tooke,  a  clerk 
in  holy  orders,  having  been  elected,  search  was  made  for 
precedents ;  they  were  considered  obscure  and  inconclusive ; 
the  House  refused  to  declare  that  Tooke  was  incapable  of 
sitting  but  passed  an  act  (41  Geo.  Ill,  c.  63)  disqualifying 

1  See  p.  240. 

M.  33 


514  Constitutional  History  PERIOD 

clergymen  for  the  future.  At  the  same  time  it  disqualified 
the  clergy  of  the  Scottish  Church.  In  1829  when  Roman 
Catholic  laymen  were  admitted  by  the  Catholic  Emancipation 
Act  (10  Geo.  IV,  c.  7),  the  Roman  Catholic  clergy  were 
expressly  excluded.  These  disqualifications  are  somewhat 
anomalous,  for  there  is  nothing  to  prevent  the  minister  of  a 
congregation  of  Protestant  nonconformists  from  sitting.  In 
1870  (33  and  34  Vic.,  c.  91)  persons  in  the  orders  of  the 
established  church  were  enabled  to  solemnly  renounce  their 
orders  and  so  free  themselves  from  disability. 

We  turn  to  another  portion  of  our  subject.  From  the  time 
of  the  Reformation  onwards  a  long  attempt  is  made  to  force 
people  to  accept  the  doctrines  and  worship  of  the  church  as 
defined  by  statute.  The  gradual  abandonment  of  this  attempt 
constitutes  the  history  of  toleration.  Starting  in  Elizabeth's 
day  we  find  one  set  of  statutes  directed  against  the  Catholics, 
and  another  against  the  Puritans.  In  1562  the  oath  of 
supremacy,  which  declared  the  queen  to  be  the  only  supreme 
governor  of  this  realm,  as  well  in  all  spiritual  or  ecclesiastical 
causes  as  temporal,  was  required  of  members  of  the  House  of 
Commons:  it  might  be  tendered  to  all  persons  who  had  taken 
a  degree  in  the  University,  to  all  schoolmasters,  to  all 
barristers,  and  to  various  other  classes;  to  refuse  it  once  was  to 
incur  the  penalty  of  praemunire,  to  refuse  it  a  second  time  was 
high  treason.  In  1571  new  treasons  were  invented :  thus  to  call 
the  queen  a  heretic  was  treasonable,  to  publish  any  papal  bull 
was  treasonable,  to  reconcile  any  of  the  queen's  subjects  to 
the  See  of  Rome  was  treasonable.  In  1580  to  celebrate  mass 
was  made  a  crime,  and  to  hear  mass.  Everyone  was  to  attend 
the  church  service  upon  pain  of  forfeiting  £20  per  month.  In 
1585  the  Jesuits  and  seminary  priests  were  expelled:  for 
them  to  remain  here  was  high  treason.  As  to  the  Puritans, 
the  rigorous  action  of  the  Court  of  High  Commission  served 
to  expel  them  from  ecclesiastical  benefices,  and  in  1593  there 
is  direct  legislation  against  them ;  persons  who  frequent 
irregular  conventicles  are  to  be  imprisoned  until  they  conform. 
Under  James  there  was  fresh  legislation  against  popish 
recusants,  that  is  to  say  against  all  persons  who  refused  to 
take  an  oath  declaring  that  James  was  lawfully  king,  and  that 


V        The  Restoration  and  Nonconformity    5 1 5 

the  Pope  had  no  power  to  depose  him.  Such  a  person  was 
deprived  of  most  of  his  civil  rights,  and  was  almost  in  the 
position  of  an  outlaw.  The  legislation  against  Catholics  was 
infinitely  more  severe  than  the  legislation  against  Puritans. 
Still  the  latter  had  many  grievances  in  that  they  were  excluded 
from  ecclesiastical  benefices  by  the  Act  of  Uniformity,  which 
was  rigorously  enforced.  Then,  as  we  know,  for  a  time 
Puritanism  gained  the  upper  hand,  and  again  at  the  Restoration 
it  fell.  The  time  then  comes  for  laws  against  the  Protestant 
nonconformists.  All  the  while,  however,  the  terrible  code 
against  the  Catholics  remains  unrepealed,  though  under 
Charles  II  and  James  II  breaches  of  it  ace  connived  at  by  the 
king,  and  sanctioned  by  virtue  of  the  dispensing  power.  The 
great  acts  of  Charles  ITs  reign  which  we  have  to  notice  are 
five  in  number.  The  Corporation  Act,  1661,  obliged  all 
holders  of  office  in  municipal  corporations  to  receive  the 
sacrament  according  to  the  rites  of  the  Church  of  England. 
The  Conventicle  Act  of  1664  made  it  penal  for  any  person  to 
attend  a  conventicle,  that  is,  any  meeting  for  religious  worship 
at  which  five  persons  were  present  besides  the  household. 
Three  months  imprisonment  was  the  punishment  for  the  first 
offence.  The  Five  Mile  Act  of  1665  made  it  unlawful  for  any 
nonconformist  minister  to  come  within  five  miles  of  a  corporate 
town  upon  pain  of  a  £40  fine,  and  no  nonconformist  might 
teach  in  any  public  or  private  school.  The  Test  Act  of  1673 
imposed  the  sacramental  test  on  all  persons  holding  any  office 
of  trust.  The  Parliamentary  Test  Act  of  1678,  directed 
against  Roman  Catholics,  imposed  the  declaration  against 
transubstantiation  upon  members  of  both  Houses,  and  thus  for 
the  first  time  excluded  Roman  Catholic  peers  from  the  House 
of  Lords. 

Meanwhile  the  old  law  as  to  the  burning  of  heretics  had 
passed  away.  Its  history  is  particularly  complicated  and 
confused,  owing  to  the  rapid  fluctuations  of  religious  opinion 
during  the  age  of  the  Reformation.  On  Elizabeth's  accession 
the  old  statutes  of  Henry  IV  and  Henry  V  were  repealed  ; 
some  Anabaptists  were  burnt  in  her  reign,  and  an  Arian 
was  burnt  in  1612  under  James  I;  but  it  is  doubtful  whether 
these  proceedings  were  lawiul,  and  in  particular  Coke  gave  his 

33—2 


516  Constitutional  History  PERIOD 

opinion  against  the  execution  of  I6I21.  The  question  was 
whether  the  common  law — the  old  statutes  being  repealed — 
had  any  procedure  against  heresy.  This  case  of  1612  is 
believed  to  be  the  last  case  of  anyone  being  executed  as  a 
heretic.  In  1677,  under  Charles  II,  an  act  was  passed 
(29  Car.  II,  c.  9)  which  abolishes  whatever  power  there  may 
have  been  of  burning  heretics.  We  must  carefully  distinguish 
the  trial  of  a  man  for  heresy,  from  his  trial  under  any  of  the 
statutes  directed  against  Papists ;  the  Catholics  who  for  one 
reason  and  another  suffered  death  under  Elizabeth  and  James, 
were  tried  by  the  ordinary  legal  tribunals  for  offences  created 
by  statute. 

(  Immediately  after  the  Revolution  the  Penal  Code  against 
Protestant  dissenters  was  very  much  mitigated  by  the 
Toleration  Act  of  1688  (i  Will,  and  Mary,  c.  18).  There  was 
a  slight  reaction  in  favour  of  persecution  under  Anne,  which 
produced  the  act  against  occasional  conformity  of  1711 
(10  Anne,  c.  6),  and  the  Schism  Act  of  1713  (13  Anne,  c.  7), 
but  the  latter  was  repealed  five  years  afterwards  in  1718 
(5  Geo.  I,  c.  4).  In  1728,  just  after  the  accession  of  George  II, 
a  practice  was  begun  of  passing  every  year  an  act  indemnifying 
those  holders  of  offices  who  had  failed  to  take  the  requisite 
oath  or  to  receive  the  sacrament — a  curious  English  practice. 
It  amounts  to  saying  '  We  will  not  repeal  the  law,  but  it  is 
understood  that  nobody  need  keep  it,  for  every  year  an  act 
will  be  passed  indemnifying  those  who  have  not  kept  it' 

I  can  best  illustrate  this  part  of  the  subject  by  referring  to 
Blackstone's  Commentaries ',vol.  IV,  p.  53.  Blackstone,  writing  in 
the  middle  of  the  eighteenth  century,  still  treats  nonconformity 
as  being  in  a  general  way  an  offence — he  calls  it  the  crime  of 
nonconformity — and  then  describes  how  of  late  exceptions 
have  been  made  to  a  general  rule.  For  instance  it  is  still,  as  a 
general  rule,  a  statutory  offence  under  acts  of  Elizabeth  and 
James  not  to  go  to  church ;  he  who  absents  himself  forfeits 
one  shilling  for  every  Sunday,  and  £20  if  he  absents  himself 
for  a  month,  but  an  exception  has  been  made  in  favour  of 
dissenters  by  the  Toleration  Act;  they  may  absent  themselves 

1  Coke,  Reports,  xu,  93.     See  on   the  whole  question,  btcyhen,  History  oj 
Criminal  Law,  vol.  II,  pp.  437—69. 


v    Eighteenth  Century  and  Nonconformity  517 

provided  (i)  they  be  neither  Papists  nor  Unitarians,  (2) 
they  have  taken  the  oaths  of*  allegiance  and  supremacy  and 
subscribed  the  declaration  against  transubstantiation,  (3)  they 
repair  to  some  registered  place  of  worship.  So  again  dis- 
senting preachers  are  exempted  from  the  acts  which  prohibit 
them  from  teaching  if  they  have  subscribed  the  Thirty-nine 
Articles  except  three  and  part  of  a  fourth,  that  is,  except  those 
which  relate  to  the  government  of  the  church  and  infant 
baptism;  they  are  also  exempted  by  a  still  newer  act  of  1779, 
if  instead  of  subscribing  the  Articles  they  will  profess  them- 
selves Christians  and  Protestants.  Toleration  of  any  profession 
of  faith,  other  than  that  of  the  established  church,  is  still  the 
exception,  not  the  rule.  However,  by  this  time  the  more 
orthodox  sects  of  Protestant  nonconformists  enjoyed  liberty 
of  worship  and  teaching.  The  annual  Indemnity  Acts 
enabled  them  to  hold  office,  and  there  had  never,  I  think, 
been  anything  which  excluded  them  from  voting  in  parlia- 
mentary elections,  or  sitting  in  either  House  of  Parliament.  l 
With  the  Catholics  it  was  still  far  otherwise.  Catholicism 
had  been  treated  not  as  a  mere  religious  error,  but  as  a  grave 
political  danger,  and  considering  the  risings  of  1715  and  1745, 
we  are  perhaps  not  justified  in  condemning  that  treatment. 
I  low  enormously  severe  the  law  was,  will  appear  from  the 
following  passage  from  Blackstone1 :  *  Papists  may  be  divided 
into  throe  classes — persons  professing  popery,  popish  recusants 
convict,  and  popish  priests.  I.  Persons  professing  the  popish 
religion,  besides  the  former  penalties  for  not  frequenting,  their 
parish  church,  are  disabled  from  taking  lands  either  by 
descent  or  purchase  after  eighteen  years  of  age,  until  they 
renounce  their  errors  ;  they  must,  at  the  age  of  twenty-one, 
register  their  estates  before  acquired,  and  all  future  conveyances 
and  wills  relating  to  them  ;  they  are  incapable  of  presenting 
to  any  advowson  [or  granting  to  any  other  person  any  avoidance 
of  the  same],  they  may  not  keep  or  teach  any  school,  under  pain 
of  perpetual  imprisonment ;  and  if  they  willingly  say  or  hear 
mass  they  forfeit  the  one  200,  the  other  100  marks,  and  each 
shall  sufler  a  year's  imprisonment.  Thus  much  for  persons, 

1  Commentaries )  vol.  iv,  p.  55. 


518  Constittitional  History  PERIOD 

who,  from  the  misfortune  of  family  prejudices  or  otherwise,  have 
conceived  an  unhappy  attachment  to  the  Romish  Church  from 
their  infancy,  and  publicly  profess  its  errors.  But  if  any  evil 
industry  is  used  to  rivet  these  errors  upon  them,  if  any  person 
sends  another  abroad  to  be  educated  in  the  popish  religion,  or 
to  reside  in  any  religious  house  abroad  for  that  purpose,  or 
contributes  to  their  maintenance  when  there,  both  the  sender, 
the  sent  and  the  contributor  are  disabled  to  sue  in  law  or 
equity,  to  be  executor  or  administrator  to  any  person,  to  take 
any  legacy  or  deed  of  gift,  and  to  bear  any  office  in  the  realm, 
and  shall  forfeit  all  their  goods  and  chattels  and  likewise  all 
their  real  estate  for  life.  And  where  these  errors  are  also 
aggravated  by  apostasy  or  perversion,  where  a  person  is 
reconciled  to  the  See  of  Rome,  or  procures  others  to  be 
reconciled,  the  offence  amounts  to  high  treason.  2.  Popish 
recusants,  convicted  in  a  court  of  law  of  not  attending  the 
service  of  the  Church  of  England,  are  subject  to  the  following 
disabilities,  penalties  and  forfeitures,  over  and  above  those 
before  mentioned.  They  are  considered  as  persons  excom- 
municated ;  they  can  hold  no  office  or  employment ;  they 
must  not  keep  arms  in  their  houses,  but  the  same  may  be 
seized  by  the  justices  of  the  peace  ;  they  must  not  come 
within  ten  miles  of  London  on  pain  of  £100,  they  can  bring 
no  action  at  law  or  suit  in  equity ;  they  are  not  permitted  to 
travel  above  five  miles  from  home  unless  by  licence,  upon 
pain  of  forfeiting  all  their  goods ;  and  they  may  not  come  to 
court  under  pain  of  ;£ioo....A  married  woman,  when  recusant, 
shall  forfeit  two-thirds  of  her  dower  or  jointure,  may  not  be 
executrix  or  administratrix  to  her  husband,  nor  have  any 
part  of  his  goods,  and  during  the  coverture  may  be  kept  in 
prison,  unless  her  husband  redeems  her  at  the  rate  of  £10  a 
month  or  the  third  part  of  all  his  lands.  And  lastly,  as  a 
feme-covert,  a  recusant  may  be  imprisoned ;  so  all  others  must 
within  three  months  after  conviction,  either  submit  and 
renounce  their  errors,  or  if  required  so  to  do  by  four  justices, 
must  abjure  and  renounce  the  realm,  and  if  they  do  not  depart 
or  if  they  return  without  the  king's  licence,  they  shall  be  guilty 
of  felony,  and  suffer  death  as  felons  without  benefit  of  clergy. 
...But  (3)  the  remaining  species  or  degree,  viz.  popish  priests, 


V  Catholic  Disabilities  519 

are  in  a  still  more  dangerous  condition,  for  by  1 1  and  12 
Will.  Ill,  c.  4,  popish  bishops  or  priests  celebrating  mass  or 
exercising  any  part  of  their  functions  in  England,  except  in 
the  houses  of  ambassadors,  arc  liable  to  perpetual  imprison- 
ment And  by  27  Eliz.,  c.  2,  any  popish  priest  born  in  the 
dominions  of  the  crown  of  England,  who  shall  come  hither 
from  beyond  sea  (unless  driven  by  stress  of  weather  and 
tarrying  only  a  reasonable  time),  or  shall  be  in  England 
three  days  without  conforming  and  taking  the  oaths,  is  guilty 
of  high  treason  ;  and  all  persons  harbouring  him  are  guilty  of 
felony  without  the  benefit  of  clergy/ 

Such  were  the  laws  against  Catholics  in  the  middle  of  the 
eighteenth  century,  the  result  of  a  series  of  statutes  extending 
from  the  reign  of  Elizabeth  to  that  of  George  II.  It  is 
customary  for  writers  to  become  eloquent  over  the  acts  against 
Protestant  nonconformists — the  Corporation  Act,  Five  Mile 
Act,  Conventicle  Act — they  were  trifles  when  compared  with 
the  rigorous  laws  against  the  Catholics.  In  Blackstone's  day 
they  were  seldom  enforced,  still  they  existed. 

From  both  Houses  of  Parliament  Catholics  were  excluded 
by  the  declaration  against  transubstantiation. 

The  greater  part  of  this  rigorous  code  was  repealed  in 
r79r  (31  Geo.  Ill,  c.  32),  or  rather  all  Catholics  were  exempted 
from  it  upon  taking  an  oath,  which  it  was  possible  for  them  to 
take,  renouncing  the  Pope's  civil  power  and  the  doctrines  that 
faith  need  not  be  kept  with  heretics,  and  that  princes  excom- 
municated by  the  Pope  might  be  deposed  or  murdered.  /A 
Catholic  who  would  take  this  oath  was  freed  from  civil 
disabilities,  might  worship  in  his  own  way  in  a  registered  place 
(which,  however,  might  not  have  a  steeple  nor  a,  bell),  and 
could  not  be  prosecuted  for  not  attending  church,  /He  might 
hold  most  offices  in  consequence  of  the  annual  indemnity  acts. 
He  was  still,  however,  unable  to  sit  in  either  House  of  Parlia- 
ment, because  the  declaration  against  transubstantiation  was 
required  of  all  members.  In  strictness  of  law  he  could  not 
vote  in  a  parliamentary  election,  because  all  electors  on 
presenting  themselves  to  vote  might  be  required  to  take  an 
oath  declaring  that  the  Pope  had  no  spiritual  jurisdiction 
within  this  realm  ;  an  oath  which,  though  not  so  stringent  as 


520  Constitutional  History  PERIOD 

the  declaration  against  transubstantiation,  a  conscientious 
Catholic  could  hardly  take.  As  a  matter  of  fact,  however, 
I  suspect  that  Catholics  did  vote,  for  the  oath  seems  to  have 
seldom  been  tendered;  owing  to  the  lengthy  process  of  swear- 
ing the  electors,  an  act  of  1794  said  that  this  form  was  only 
to  be  gone  through  if  a  candidate  required  it,  and  then  at  his 
own  expense.  \Catholic  emancipation  came  in  the  year  1829 
(10  Geo.  IV,  c.  7).  Catholics  might  vote  in  parliamentary 
elections,  sit  in  either  House  and  hold  any  lay  office  (except 
those  of  Regent,  Chancellor  and  Lord-Lieutenant  of  Ireland) 
on  taking  an  oath  of  allegiance  in  which  there  was  nothing 
offensive  to  their  religious  principles.;  The  subsequent  history 
of  parliamentary  oaths  we  have  already  traced.  However,  as 
I  have  explained,  the  act  of  1791  did  not  repeal  the  old  laws 
against  Catholics,  it  merely  exempted  from  their  terms  those 
who  would  take  a  certain  oath.  It  was  not  until  1846  (9  and 
10  Vic.,  c.  59)  that  those  laws  were  swept  off  the  statute  book, 
VjMeanwhile  full  relief  had  been  given  to  the  Protestant 
nonconformists.  The  provisions  of  the  Test  and  Corporation 
Acts,  which  were  obnoxious  to  them,  were  repealed  in  1828 
(9  Geo.  IV,  c.  17),  though  the  work  was  not  quite  accomplished 
until  1868  (31  and  32  Vic.,  c.  72):  between  those  two  dates  a 
declaration  was  required  of  office-holders  to  the  effect  that 
they  would  not  use  their  offices  to  injure  or  weaken  the  Church 
of  England. 

The  legislation  by  which  disabilities  have  been  first 
imposed  and  then  removed  is  very  complicated,  but  at  the 
present  moment  we  may,  I  think,  say  that  religious  liberty 
and  religious  equality  is  complete.  These,  however,  are  vague 
phrases,  and  we  ought  to  render  them  more  precise.  I  mean 
by  them,,: 

(1)  LThat  the  profession  of  any  religion  or  of  no  religion 
is  no  offence.^  This,  however,  is  subject  to  what  I  shall  here- 
after have  to  say  as  to  blasphemy,  and  as  to  the  procedure  of 
the  ecclesiastical  courts  against  heresy. 

(2)  (That   every   form   of    public   worship   is   permitted. 
There  are  provisions  as  to  the  registration  of  places  of  worship; 
but  these,  however,  hardly  derogate   from   our  proposition. 
There  are  also  some  statutory  clauses  still  in  force  against 


V  Meaning  of  Religious  Liberty        52 1 

Jesuits  and  other  religious  orders  of  the  Church  of  Rome, 
requiring  that  they  should  obtain  license  to  reside  in  the 
United  Kingdom:  whether  they  are  practically  applied  I 
cannot  say ;  they  are  laid  down  in  the  Emancipation  Act  of 
1829,  and  are  severer  than  most  people  imagine:  it  is  a  mis- 
demeanour for  a  Jesuit  to  come  into  this  realm  without  the 
license  of  a  Secretary  of  State. 

(3)  ^The  profession  of  any  form  of  religious  belief  Js  not 
a  condition  for  the  existence  or  exercise  of  civil  rights/    On 
the  whole,  I  think  we  may  say  that  this  certainly  is  so,  though 
it  is  only  of  quite  late  years  that  a  person  having  no  religious 
belief  has  been  able  to  give  testimony  before  a  court  of  justice. 
Until  1869  a  person  who  would  not  take  an  oath  could  not 
give  evidence  unless  he  was  a  Quaker — Quakers  had  been 
relieved    much   earlier.       In    that   year   he    was    enabled    to 
substitute  a  declaration  for  an  oath,  on  satisfying  the  judge 
that  an  oath  would  have  no  binding  effect  on  his  conscience. 
We   may   note  also   a   disability  in   respect   of  advowsons. 
Roman  Catholics  cannot  present  to  livings  in  the  established 
church.     This,  however,  is  hardly  an  exception,  though  it  is 
curious,  for  it  seems  that  an  atheist  may  present. 

(4)  The  profession  of  any  form  of  religious  belief  is  not 
a  condition  for  the  existence  or  exercise  of  political  rights. 
This  is  generally  true — but  there  are  some  exceptions  and 
one  very  notable  exception.     The  king  forfeits  the  crown  by 
becoming  or  marrying  a  Papist,  also  the  king  is  directed  to 
join  in  communion  with  the  established  church.     It  seems 
however  that   the  king   would   not   commit  a  forfeiture  by 
becoming  a  Baptist. 

Again  it  would  appear  that  there  are  two  offices  which 
cannot  be  held  by  Roman  Catholics,  those  namely  of  Lord 
Chancellor  of  England,  and  Lord-Lieutenant  of  Ireland.  A 
statute  of  1867  (30  and  31  Vic.,  c.  75)  provides  that  the  Lord 
Chancellor  of  Ireland  may  be  Catholic. 

It  remains  to  qualify  our  proposition  as  to  the  lawfulness 
of  publishing  opinions  about  religion  : 

(a)  Blasphemy  is  a  common  law  misdemeanour,  Until 
lately  ther*  was  sfood  ground  for  contending  that  any  publica- 
tion was  blaspiiemous  if  it  denied  the  main  doctrines  of 


522  Constitutional  History  PERIOD 

Christianity ;  this  had  been  so  laid  down  in  several  cases. 
But  it  seems  now  that  we  must  qualify  it  by  adding  that 
publications  intended  in  good  faith  to  propagate  opinions  on 
religious  subjects,  which  the  person  who  publishes  them 
regards  as  true,  are  not  blasphemous,  if  they  are  expressed  in 
decent  terms. 

(£)  Under  Stat.  g^and  10  Will.  Ill,  c.  32  (1698)  it  is  a 
misdemeanour  for  anyone  who  has  been  a  Christian  to  deny 
by  writing,  printing,  teaching  or  advised  speaking  the  Christian 
religion  to  be  true  or  the  Old  and  New  Testaments  to  be  of 
divine  authority.  The  offender  upon  a  first  conviction  is 
disabled  from  holding  any  office  or  employment,  ecclesiastical, 
civil  or  military.  On  a  second  conviction  he  must  be  im- 
prisoned for  three  years.  This  act  had  long  lain  dormant  on 
the  statute  book,  when  an  attempt,  which  failed,  was  made 
to  put  it  in  force  against  Bradlaugh1. 

(c)  Mere  heresy  or  schism  is  in  all  probability  to  this  day 
an  ecclesiastical  offence,  i.e.  an  offence  to  be  punished  in  the 
ecclesiastical  courts,  and  for  it  a  man  might  be  imprisoned  for 
six  months.  I  am  not  aware,  however,  that  a  layman  has  been 
prosecuted  for  heresy  for  the  last  century  and  more.  But 
this  leads  us  to  another  part  of  our  subject:  the  history  of 
the  ecclesiastical  courts. 

The  act  of  the  Long  Parliament  which  abolished  the 
Court  of  High  Commission  used  such  very  general  words  that, 
if  it  did  not  abolish  the  old  ecclesiastical  courts,  it  practically 
deprived  them  of  their  power.  At  the  Restoration,  however 
by  statute  passed  in  1661  (13  Car.  II,  c.  12)  it  was  'explained 
that  this  was  not  the  desired  result :  the  Court  of  High  Com- 
mission was  not  to  be  re-established,  but  the  old  ecclesiastical 
jurisdiction  of  the  old  ecclesiastical  courts  was  to  be  exercised 
as  of  old.  A  few  years  afterwards  (1677,  29  Car.  II,  c.  9)  the 
act  was  passed  which  forbad  "the  burning  of  heretics,  but  it 
was  expressly  added  that  nothing  contained  in  that  act  should 
take  away  the  jurisdiction  of  the  ecclesiastical  judges  in  cases 
of  atheism,  blasphemy,  heresy  or  schism,  or  any  other  damnable 
doctrines  and  opinions,  but  that  they  may  punish  the  same 

1  Reg.  v.  Bradlaugk  and  others,  1883.     Cox,  Criminal  Law  Casts,  vol.  XV, 
p.  218  ff. 


V  Ecclesiastical  Courts  523 

by  excommunication,  deprivation,  degradation  and  other 
ecclesiastical  censures. 

There  were  then  ecclesiastical  courts — an  elaborate  struc- 
ture of  them,  with  appeal  lying  from  the  lower  to  the  higher; 
an  archdeacon's  court  for  each  archdeaconry,  a  bishop's  court 
for  each  diocese,  an  archbishop's  court  for  either  province: 
the  final  appeal  being  under  an  act  of  Henry  VIII  (1534, 
25  Hen.  VIII,  c.  19)  to  the  king  who  was  to  appoint  judges, 
'judges  delegate/  to  hear  the  cause.  This  structure  of  courts 
with  little  modification  still  exists.  The  greatest  change  is 
that  in  1832  (2  and  3  Will.  IV,  c.  92)  the  jurisdiction  of  these 
judges  delegate  was  transferred  to  the  Judicial  Committee  of 
the  Privy  Council,  which  was  formed  in  the  next  year.  Under 
an  act  of  1876  the  ultimate  appeal  is  to  the  Judicial  Committee, 
certain  bishops  sitting  as  assessors  of  the  judges  according  to 
a  rota  of  seniority  settled  in  1876. 

But  though  these  ecclesiastical  courts  still  exist  their 
power  has  very  much  declined.  Let  us  take  up  the  main 
heads  of  the  old  ecclesiastical  jurisdiction  one  by  one. 

(i)  In  the  first  place  they  were,  as  so  often  said,  the  courts 
for  matrimonial  and  testamentary  causes  :  and  this  brought 
them  a  great  deal  of  work.  Every  will  of  personal  property 
had  to  be  proved  in  the  bishop's  or  archbishop's  court  This 
large  jurisdiction  they  retained  until  1857,  when  it  was  taken 
from  them  and  vested  in  two  new  courts  :  a  Court  for  Divorce 
and  Matrimonial  Causes,  and  a  Court  of  Probate,  courts  which 
in  1875  were  merged  in  the  High  Court  of  Justice. 

(ii)  They  had,  and  theoretically  still  have,  a  considerable 
penal  jurisdiction  over  laity  as  well  as  clergy,  in  what  we  may 
call  cases  of  irreligion  and  immorality :  a  power  to  correct  the 
sinner  pro  salute  aniniae  by  means  of  penance  and  excom- 
munication. Throughout  the  Middle  Ages  this  power  was 
largely  used,  and  it  has  never  been  expressly  taken  away. 
However  it  has  long  been  considered  an  established  principle 
that  the  ecclesiastical  courts  were  not  to  try  men  for  temporal 
offences,  i.e.  offences  punishable  in  the  king's  courts.  Now 
many  of  the  graver  offences,  with  which  the  ecclesiastical 
courts  once  dealt,  have  by  statute  been  made  crimes  punish- 
able by  the  lay  tribunals,  and  in  this  way  the  courts  Christian 


524  Constitutional  History  PFRIOD 

have  lost  jurisdiction.  Bigamy  is  a  case  in  point;  until  1603 
it  was  only  an  offence  against  ecclesiastical  law :  in  that  year 
it  was  made  a  felony.  Until  1855  the  ecclesiastical  courts 
punished  defamatory  words :  in  that  year  their  jurisdiction  in 
this  matter  was  abolished  by  a  statute  (18  and  19  Vic.,  c.  41) 
which  speaks  of  it  as  grievous  and  oppressive,  so  I  suppose 
that  it  was  exercised.  But  they  probably  still  have  power  in 
cases  of  adultery  and  of  fornication.  To  these  must  be  added 
heresy  and  schism.  This  jurisdiction  is  expressly  saved  by 
the  act  which  abolished  the  writ  de  haeretico  comburendo.  It 
is  not  exercised  ;  but  seemingly  it  exists.  As  to  the  weapons 
which  these  courts  have  at  command — over  the  laity  these  are 
penance,  and  in  the  last  resort  excommunication.  Excom- 
munication, as  already  said,  involved  a  number  of  civil  dis- 
abilities, and  if  the  excommunicated  person  would  not  submit, 
the  king's  writ  issued  de  excommunicate  capiendo,  and  he  was 
imprisoned  until  he  satisfied  the  church.  In  1813  (53  Geo.  Ill, 
c.  127)  the  law  was  altered  ;  excommunication  was  no  longer  to 
have  any  disabling  effect,  but  the  court  pronouncing  the 
sentence  of  excommunication  was  to  have  power  to  imprison 
the  excommunicate  for  any  term  not  exceeding  six  months. 
It  would  seem  then  that  the  heretic,  schismatic,  fornicator, 
adulterer  or  other  offender  (the  catalogue  of  offences  we 
cannot  lay  down  with  any  certainty)  may  be  tried  by  the 
ecclesiastical  court,  excommunicated  and  imprisoned  for  six 
months. 

(iii)  These  courts  have  had  a  power,  never  very  extensive, 
in  some  matters  relating  to  the  endowments  of  the  churches, 
in  particular  tithes  and  church  rates.  They  could  compel, 
for  instance,  the  payment  of  tithes,  if  the  right  to  the  tithes 
was  not  disputed,  but  their  sphere  was  a  limited  one:  from  an 
early  time,  as  we  have  already  said,  the  king's  courts  regarded 
ecclesiastical  endowments  and  ecclesiastical  patronage  as 
belonging  to  their  own  province.  And  practically  the  sphere 
of  the  courts  Christian  has  become  very  limited  indeed,  a  series 
of  modern  acts  having  provided  summary  remedies  fur  the 
recovery  of  tithes,  and  of  the  rent-charge  into  which  tithes 
have  been  commuted :  while  as  to  church  rates,  the  compulsory 
church  rates  were  abolished  in  1868  (31  and  32  Vic.,  c.  109). 


V        Position  of  Clerks  in  English  Orders    525 

There  are  a  good  many  small  miscellaneous  matters  relating  to 
the  fabrics  of  the  churches  which  are  subject  to  these  courts, 
but  as  a  matter  of  fact  the  greater  number  of  these  courts  do 
no  business  whatever  from  year's  end  to  year's  end. 

(iv)  However  it  must  not  be  forgotten  that  their  power 
over  the  clergy  is  large  and  real.  They  can  suspend  a  clerk 
in  orders  from  ministration,  and  they  may  deprive  him  of  his 
benefice  if  he  has  one.  The  legal  position  of  a  clerk  in  the 
orders  of  the  Church  of  England  differs  radically  from  that  of 
the  priest  or  the  minister  of  any  other  religion.  The  one,  we 
may  say,  has  in  the  strict  sense  of  the  term  a  legal  status,  the 
other  has  not.  The  duties  of  the  clerk  in  holy  orders  are 
directly  imposed  upon  him  by  law;  if,  for  instance,  he  is  bound 
not  to  perform  publicly  any  service  save  those  authorized  by 
the  book  of  common  prayer,  this  is  no  matter  of  contract  or 
of  trust,  it  is  a  matter  of  status,  and  there  are  special  courts 
which  can  enforce  those  duties.  Otherwise  is  it  with  the 
Catholic  priest  or  the  Wesleyan  minister,  the  law  imposes  no 
duty  upon  him  as  such.  If  he  has  contracted  to  preach  those 
doctrines  or  perform  those  ceremonies  and  none  other,  an 
action  may  lie  against  him  for  breaking  his  contract.  If  the 
trustees  or  owners  of  a  chapel  have  engaged  him  to  teach  one 
set  of  dogmas,  he  will  not  be  allowed  to  use  that  chapel  for 
the  propagation  of  another  set  of  inconsistent  dogmas.  Before 
now  the  Court  of  Chancery  has  had  to  decide  that  a  non- 
conformist minister  had  no  right  to  use  a  chapel,  because  he 
was  engaged  to  preach  the  doctrine  of  universal  depravity 
and  was  not  preaching  it.  So  an  English  temporal  court  might 
have  to  decide  whether  a  Roman  priest  was  preaching  ortho- 
doxy or  heterodoxy,  i.e.  whether  he  was  doing  what  he  was 
paid  for,  or  putting  a  particular  building  to  its  right  use.  But 
all  this  is  matter  of  contract  or  of  trust,  matter  of  private  law, 
and  the  court  would  receive  evidence  as  to  what  are  the 
orthodox  doctrines  of  the  Roman  Church  or  of  the  Particular 
Baptists.  Otherwise  with  the  clerk  in  English  orders — contract 
or  no  contract,  trust  or  no  trust,  he  has  both  negative  and 
positive  duties:  he  must  not  preach  heterodox  doctrines,  he 
must  not  use  ceremonies  not  authorized  by  the  prayer  book ; 
if  he  has  a  church  he  must  periorm  the  church  services,  he 


526  Constitutional  History  PERIOD 

must  bury,  he  must  marry,  and  the  courts  do  not  require 
evidence  as  to  the  doctrines  that  he  is  to  teach,  or  the  cere- 
monies that  he  is  to  perform  :  the  standard  of  orthodox  dogma 
and  orthodox  ritual  is  directly  fixed  by  law. 

Once  more  I  call  your  attention  to  the  fact  that  there  is 
no  body  having  power  to  alter  that  standard,  other  than  the 
statute-making  body,  king  and  parliament.  This  gives  to  the 
Church  of  England  a  very  unique  position.  Indeed  I  do  not 
think  that  we  can  for  legal  purposes  define  the  Church  of 
England  as  consisting  of  a  body  of  persons,  or  as  represented 
by  B.  body  of  persons.  It  is  no  corporation,  it  is  no  self- 
governing  body  of  persons,  consequently  it  has  no  rights  and 
no  duties.  As  already  explained  it  has  no  property :  there  is 
no  land,  for  instance,  which  belongs  to  the  Church  of  England — 
there  is  glebe  of  this  parish  church,  and  of  that  parish  church. 
Further  the  benefit  of  the  organization  is  not  confined  to  any 
definite  body  of  persons:  the  parishioner  has  a  legal  right  of 
attending  the  services  in  his  parish  church,  until  comparatively 
recent  times  it  was  his  legal  duty  to  attend  them,  even  from 
the  Holy  Communion  he  can  only  be  excluded  for  one 
among  several  definite  causes,  known  to  the  law;  the  clergy- 
man who  refused  to  receive  him  would  have  to  prove  the 
existence  of  one  of  those  causes.  We  may  speak  if  we  will 
of  the  church  as  a  legal  organization,  but  we  must  not  think 
of  it  as  of  a  legal  person  or  as  a  definite  body  of  persons. 


K.     The  Definition  of  Constitutional  Law, 

We  will  end  our  course  by  raising  a  question  which  perhaps 
in  your  opinion  ought  to  have  been  raised  and  discussed  long 
ago,  namely,  How  are  we  to  define  constitutional  law  ?  I  have 
thought  it  best  to  postpone  the  discussion  until  this  our  last 
moment,  because  it  seems  to  me  that  we  cannot  profitably 
define  a  department  of  law  until  we  already  know  a  good 
deal  of  its  contents.  I  hope  that  I  do  not  undervalue  that 
study  of  general  jurisprudence  which  holds  the  first  place  in 
the  programme  of  the  law  tripos ;  still  you  will  by  this  time 
have  learnt  enough  to  know  that  a  classification  of  legal  rules 


V  Sphere  of  Constitutional  Law         527 

which  suits  the  law  of  one  country  and  one  age  will  not 
necessarily  suit  the  law  of  another  country  or  of  another  age. 
One  may  perhaps  force  the  rules  into  the  scheme  that  we 
have  prepared  for  them,  but  the  scheme  is  not  natural  or 
convenient  Only  those  who  know  a  good  deal  of  English 
law  are  really  entitled  to  have  any  opinion  as  to  the  limits 
of  that  part  of  the  law  which  it  is  convenient  to  call 
constitutional. 

Now  my  first  remark  must  be  that  this  question  is  on  the 
whole  a  question  of  convenience.  It  is  not  to  be  solved  by 
any  appeal  to  authority.  The  phrase,  constitutional  law,  is  of 
course  a  very  common  phrase,  but  it  is  not  a  technical  phrase 
of  English  law.  I  am  not  aware  that  it  has  ever  been  used  in 
the  statute  book  or  that  any  judge  has  ever  set  himself  to 
define  it.  If  we  had  a  code  which  called  itself  a  code  of 
constitutional  law,  then  the  definition  might  be  a  matter  of 
authority,  it  would  be  thrust  upon  us  by  the  legislature ;  but 
we  have  nothing  of  the  sort,  and  are  therefore  free  to  consider 
what  definition  would  be  convenient  and  conformable  to  the 
ordinary  usage  of  the  term. 

Now  there  is  one  use  of  the  word  constitutional  which 
we"  must  notice  in  order  that  we  may  put  it  on  one  side. 
Occasionally  it  is  contrasted  with  legal:  we  are  told  for 
example  that  a  minister's  conduct  was  legal  but  not  constitu- 
tional. We  have  seen  that  our  rules  of  law  touching  public 
affairs  are  very  intimately  connected  with  rules  touching 
public  affairs  which  are  not  rules  of  law,  rules  which  are 
sometimes  called  rules  of  constitutional  morality,  or  constitu- 
tional practice,  the  customs  of  the  constitution,  the  conventions 
of  the  constitution,  or  again  constitutional  understandings.  It 
is  to  a  breach  of  rules  of  this  latter  class,  rules  which  are  not 
rules  of  law,  that  we  refer  when  we  say  that  a  man's  conduct 
though  legal  was  not  constitutional.  He  has  broken  no  rule 
of  law,  but  he  has  broken  some  rule  of  constitutional  usage, 
some  convention  of  the  constitution :  no  court  of  law  will 
punish  him  or  take  any  notice-  of  his  misdoing,  still  he  has 
broken  a  rule  which  is  generally  kept  and  which  in  the  opinion 
of  people  in  general  ought  not  to  be  broken.  But  this  usage  of 
the  word  can  hardly  help  us  when  our  object  is  to  determine 


528  Constitutional  History  PERIOD 

what  part  of  the  law  is  to  be  called  constitutional ;  it  merely 
tells  us  that  according  to  common  opinion  certain  rules  are 
constitutional  which  are  not  rules  of  law. 

Now  I  will  place  before  you  two  accredited  definitions  or 
descriptions  of  constitutional  law  ;  the  one  comes  from  Austin, 
the  other  from  Professor  Holland.  Austin's  opinion  will  be 
found  in  a  note  at  the  end  of  the  Outline  of  the  Course  of 
Lectures*.  Having  defined  'public  law'  as  the  law  of  political 
conditions,  he  subdivides  'public  law*  into  'constitutional  law* 
and  'administrative  law* ;  and  he  writes  thus:  'In  a  country 
governed  by  a  monarch,  constitutional  law  is  extremely 
simple :  for  it  merely  determines  the  person  who  shall  bear 
the  sovereignty.  In  a  country  governed  by  a  number,  con- 
stitutional law  is  more  complex  :  for  it  determines  the  persons 
or  the  classes  of  persons  who  shall  bear  the  sovereign  powers ; 
and  it  determines  moreover  the  mode  wherein  such  persons 
shall  share  those  powers.  In  a  country  governed  by  a  monarch, 
constitutional  law  is  positive  morality  merely  :  in  a  country 
governed  by  a  number,  it  may  consist  of  positive  morality, 
or  of  a  compound  of  positive  morality  and  positive  law. 

'Administrative  law  determines  the  ends  and  modes  to 
and  in  which  the  sovereign  powers  shall  be  exercised :  shall 
be  exercised  directly  by  the  monarch  or  sovereign  number, 
or  shall  be  exercised  directly  by  the  subordinate  political 
superiors  to  whom  portions  of  those  powers  are  delegated  or 
committed  in  trust. 

'The  two  departments  therefore  of  constitutional  and 
administrative  law  do  not  quadrate  exactly  with  the  two 
departments  of  law  which  regard  respectively  the  status  of 
the  sovereign  and  the  various  status  of  subordimite  political 
superiors.  Though  the  rights  and  duties  of  the  latter  are 
comprised  by  administrative  law,  and  are  not  comprised  by 
constitutional  law,  administrative  law  comprises  the  powers 
of  the  sovereign  in  so  far  as  they  are  exercised  directly  by 
the  monarch  or  sovereign  number. 

4  In  so  far  as  the  powers  of  the  sovereign  are  delegated 
to  political  subordinates,  administrative  law  is  positive  law, 

1  Jurisprudence,  cd.  1873,  vol.  I,  p.  73. 


V  Austin's  l^iew  529 

whether  the  country  be  governed  by  a  monarch  or  by  a 
sovereign  number.  In  so  far  as  the  sovereign  powers  are 
exercised  by  the  sovereign  directly,  administrative  law  in  a 
country  governed  by  a  monarch  is  positive  morality  merely  : 
in  a  country  governed  by  a  number  it  may  consist  of  positive 
morality,  or  of  a  compound  of  positive  morality  and  positive 
law.1 

Let  us  try  to  make  this  clearer  by  examples.  The  one 
object  of  constitutional  law,  according  to  Austin,  is  to  define 
the  sovereign.  In  a  monarchical  state  it  is  extremely  simple 
and  is  not  in  the  strict  sense  law.  Thus  on  a  subsequent 
page  Austin  says  that  from  the  days  of  Richelieu  to  those 
of  the  great  Revolution  the  king  of  France  was  sovereign  in 
France1.  '  But  in  the  same  country,  and  during  the  same 
period,  a  traditional  maxim  cherished  by  the  courts  of  justice 
and  rooted  in  the  affections  of  the  bulk  of  the  people  deter- 
mined the  succession  to  the  throne :  it  determined  that  the 
throne,  on  the  demise  of  an  actual  occupant,  should  invariably 
be  taken  by  the  person  who  then  might  happen  to  be  heir 
to  it  agreeably  to  the  canon  of  inheritance  which  was  named 
the  Salic  law.'  This  then,  in  his  opinion,  was  the  whole 
substance  of  the  constitutional  law  of  France :  the  heir  male 
of  S.  Louis  is  to  be  sovereign,  and  in  the  strictest  sense 
this  was  no  rule  of  law,  it  was  only  a  rule  of  positive 
morality.  Austin's  view,  as  you  probably  know,  is  that  in  a 
monarchical  state  the  succession  to  the  throne  cannot  be  fixed 
by  law,  positive  law :  when  the  king  dies  law  dies  with  him  ; 
sovereignty  is  not  a  matter  of  law,  it  is  a  matter  of  fact :  the 
people  by  accepting,  tacitly  accepting,  Louis  XV  on  the  death 
of  Louis  XIV  obey  no  law;  they  raise  up  a  new  sovereign;  the 
rule  which  they  observed  in  accepting  the  great-grandson  of 
the  late  king  was  no  rule  of  law ;  they  would  have  broken  no 
law,  had  they  instead  accepted  a  bastard  or  a  foreigner  or 
anyone  else.  In  such  a  case  constitutional  law  then  consists 
of  some  simple  rule,  probably  some  canon  of  descent,  and 
even  that  is  not  in  strictness  law. 

As  to  administrative  law  in  a  monarchical  state;  it  defines 

1  Jurisprudence,  ed.  1873,  vol.  I,  p.  375. 
M,  34 


530  Constitutional  History  PERIOD 

the  powers  of  the  sovereign  and  the  powers  of  the  political 
subordinates.  In  so  far  as  it  deals  with  the  powers  of  the 
sovereign,  it  is  not  in  strictness  law :  no  law  can  limit  the 
powers  of  the  sovereign.  If  it  be  generally  expected  by  the 
French  nation  that  Louis  XIV  will  only  exercise  his  powers 
in  these  or  those  ways  this  expectation  can  constitute  no  rule 
of  law,  it  can  at  best  give  rise  to  positive  morality.  But  as  to 
political  subordinates — ministers,  judges,  intendants — the  rules 
which,  for  the  time  being,  define  who  they  shall  be  and  what 
powers  they  shall  have,  will  be  true  rules  of  law — positive  law — 
though  rules  which  the  sovereign  monarch  might  at  any  time 
abolibh.  This  then  is  the  sphere  of  administrative  law. 

But  turn  from  France  of  the  eighteenth  century  to  England 
of  our  own  day.  Constitutional  law  determines  the  persons 
or  the  classes  of  persons  who  shall  bear  the  sovereign  powers  ; 
it  determines,  moreover,  the  mode  wherein  those  persons 
shall  share  those  powers.  Now  Austin  himself  had,  as  I  dare- 
say you  know,  a  curious  doctrine  about  the  sovereignty  of  this 
realm;  instead  of  holding  that  the  sovereign  body  consisted  of 
the  king,  the  lords  and  the  representatives  of  the  commons 
assembled  in  parliament,  he  held  that  it  consisted  of  the 
king,  the  lords  and  the  electors :  he  treats  the  members  of 
the  House  of  Commons  as  mere  delegates  of  the  electors. 
This  seems  to  me  a  singularly  profitless  speculation.  Suppose 
that  the  present  parliament  were  to  make  a  statute  contrary 
to  the  strongest  wishes  and  well-founded  expectations  of  those 
who  elected  it;  doubtless  that  statute  would  be  law;  the 
courts  would  treat  it  as  law  and  would  not  for  one  instant 
permit  a  suggestion  that  parliament  had  exceeded  its  powers 
by  betraying  (if  you  will)  the  trust  that  was  imposed  in  it. 
I  am  obliged  to  notice  this  point  in  passing,  but  it  is  of  no 
very  great  importance  to  us  at  the  present  moment;  for  which- 
ever view  we  take,  whether  Austin's  which  places  sovereignty 
in  king,  lords  and  electors,  or  the  commoner  and  saner  view 
which  places  it  in  king  and  parliament,  the  mass  of  rules  that 
will  be  covered  by  his  definition  of  constitutional  law  will  be 
much  the  same.  It  is  to  determine  the  persons  who  shall 
bear  the  sovereign  powers  and  the  mode  wherein  those  persons 
shall  share  those  powers.  It  must  determine  then,  in  the  hrst 


V  Criticism  of  Austin  531 

place,  who  is  to  be  king.  The  act  which  settled  the  succession 
to  the  throne  on  the  heirs  of  the  body  of  the  electress  Sophia, 
being  Protestants,  is  clearly  a  part  of  constitutional  law.  The 
rule  that  a  king  will  forfeit  his  crown  by  marrying  a  Papist  is 
clearly  a  rule  of  constitutional  law.  Whatever  law  we  have 
as  to  regencies  will  be  constitutional  law.  Then  all  the  law 
as  to  the  composition  of  the  House  of  Lords  will  be  constitu- 
tional law.  Again  all  the  law  as  to  the  qualifications  of 
voters  for  members  of  the  House  of  Commons  must  in  any 
case  be  constitutional  law.  Accepting  the  ordinary  doctrine 
that  our  sovereign  body  consists  of  king  and  parliament,  all 
the  law  as  to  the  qualifications  of  members  of  the  House  of 
Commons  will  be  constitutional ;  but  Austin,  I  think,  can  hardly 
include  it  within  his  definition,  for  according  to  him  it  is  not 
the  representatives  but  the  represented  who  form  part  of  the 
sovereign  body,  and  the  rules  as  to  how  many  delegates  the 
electors  may  choose,  and  what  must  be  the  qualification  of 
those  delegates,  would  seem  to  be  no  part  of  the  law  that 
defines  the  composition  of  the  sovereign  body.  But  any  way 
you  will  see  that  Austin's  definition  of  constitutional  law  is 
very  narrow :  it  only  includes  those  rules  which  determine 
the  composition  of  the  sovereign  body.  All  rules  as  to  the 
appointment  and  powers  of  officers  who  are  subordinate  to 
the  sovereign  are  excluded :  they  are  relegated  to  the  depart- 
ment of  administrative  law.  Thus  Austin's  constitutional  law 
would,  I  take  it,  say  nothing  of  the  Privy  Council,  of  the 
Treasury,  of  the  Secretaries  of  State,  of  the  judges,  still 
less  of  justices  of  the  peace,  poor  law  guardians,  boards  of 
health,  policemen  :  all  these  are  topics  not  of  constitutional 
but  of  administrative  law.  Even  the  procedure  of  the  sovereign 
body  itself  is  a  topic  not  of  constitutional  but  of  administra- 
tive law. 

For  my  own  part,  I  regard  this  definition  as  far  too  narrow, 
by  which  I  mean  that  it  excludes  a  very  great  deal  of  what  is 
ordinarily  called  constitutional  law,  and  most  certainly  any 
student  set  to  study  constitutional  law  would  be  ill-advised  if 
he  were  to  trust  that  his  examiners  would  not  go  beyond 
Austin's  definition.  To  take  one  instance;  the  question 
whether  the  king  has  power  to  tax  without  the  consent  of 

.     34—2 


532  Constitutional  History  PERIOD 

parliament  would  be  very  generally  treated  as  a  grave  and 
typical  question  of  constitutional  law,  but  it  does  not  fall 
within  Austin's  definition ;  it  might  be  admitted  that  the 
sovereign  power  was  possessed  by  king  and  parliament,  or  by 
king,  lords  and  electors  in  certain  shares,  and  yet  the  question 
would  be  possible  whether  law  gave  the  king  a  power  of 
imposing  customs  duties. 

Let  us  turn  to  Professor  Holland.  Having  divided  law 
into  public  and  private,  he  subdivides  public  law  into  six  de- 
partments, the  first  of  which  he  calls  constitutional  and  the 
second  administrative.  Of  constitutional  law  he  writes  thus1 : 

'The  primary  function  of  constitutional  law  is  to  ascertain 
the  political  centre  of  gravity  of  any  given  state.  It  announces 
in  what  portion  of  the  whole  is  to  be  found  the  'internal 
sovereignty/  'suprema  potestas,' ( Staatsgewaltj  or  as  Aristotle 
called  it,  TO  tcvpiov  rfc  7ro\ea>9.  In  other  words  it  defines  the 
form  of  government/  'The  definition  of  the  sovereign  power 
in  a  state  necessarily  leads  to  the  consideration  of  its  com- 
ponent parts.... It  prescribes  the  order  of  succession  to  the 
throne,  or,  in  a  Republic,  the  mode  of  electing  a  President. 
It  enumerates  the  prerogatives  of  the  king  or  other  chief 
magistrate.  It  regulates  the  composition  of  the  Council  of 
State,  and  of  the  Upper  and  Lower  Houses  of  Assembly, 
when  the  assembly  is  thus  divided;  the  mode  in  which  a 
seat  is  acquired  in  the  Upper  House,  whether  by  succession, 
by  nomination,  or  by  tenure  of  office,  the  mode  of  electing 
members  of  the  House  of  Representatives  ;  the  powers  and 
privileges  of  the  assembly  as  a  whole,  and  of  the  individuals 
who  compose  it  and  the  machinery  of  law-making.  It  deals 
also  with  the  ministers,  their  responsibility  and  their  re- 
spective spheres  of  action ;  the  government  offices  and  their 
organization ;  the  armed  forces  of  the  State,  their  control  and 
the  mode  in  which  they  are  recruited;  the  relation,  if  any, 
between  Church  and  State;  the  judges  and  their  immunities; 
the  relations  between  the  mother  country  and  its  colonies  and 
dependencies.  It  describes  the  portions  of  the  earth's  surface 
over  which  the  sovereignty  of  the  state  extends,  and  defines 

1  Jurisprudence ,  loth  ed.,  p.  359. 


V  Holland's  View  533 

the  persons  who  are  subject  to  its  authority.  It  comprises, 
therefore,  rules  for  the  ascertainment  of  nationality,  and  for 
regulating  the  acquisition  of  a  new  nationality  by  naturaliza- 
tion. It  declares  the  rights  of  the  state  over  its  subjects  in 
respect  of  their  liability  to  military  conscription,  to  service  as 
jurymen  and  otherwise..,. The  contents  of  the  constitutional 
branch  of  law  may  be  illustrated  by  reference  to  a  draft  piece 
of  legislation,  which  enters  far  more  into  detail  than  is  usual 
in  such  undertakings.  The  draft  Political  Code  of  the  State 
of  New  York  purports  to  be  divided  into  four  parts,  whereof 
"  The  first  declares  what  persons  compose  the  people  of  the 
State,  and  the  political  rights  and  duties  of  all  persons  subject 
to  its  jurisdiction  ;  the  second  defines  the  territory  of  the 
State  and  its  civil  divisions  ;  the  third  relates  to  the  general 
government  of  the  State,  the  functions"  of  its  public  officers, 
its  public  ways,  its  general  police  and  civil  polity ;  the  fourth 
relates  to  the  local  government  of  counties,  cities,  towns  and 
villages/1' 

Now  this  can  hardly  be  called  a  definition  of  constitutional 
law,  rather  it  is  a  string  of  particulars.  I  have  no  doubt, 
however,  that  Professor  Holland  has  general  usage  on  his  side 
in  giving  the  term  a  far  wider  meaning  than  that  which  Austin 
put  upon  it  But  he  has  to  meet  this  difficulty,  that  he  includes 
so  much  under  constitutional  law  that  he  seems  to  leave 
little  to  come  under  his  head  of  administrative  law.  His 
general  idea,  however,  is  given  in  these  words :  *  The  various 
organs  of  the  sovereign  power  are  described  by  constitutional 
law  as  at  rest;  but  it  is  also  necessary  that  they  should  be 
considered  as  in  motion,  and  that  the  manner  of  their  activity 
should  be  prescribed  in  detail.  The  branch  of  law  that  does 
this  is  called  administrative  law,  "Verwaltungsrecht"  in  the 
widest  sense  of  the  word1/  I  think  that  we  catch  his  idea  if 
we  say  that,  while  constitutional  law  deals  with  structure, 
administrative  law  deals  with  function.  If  this  idea  were 
pursued,  then  constitutional  law  would  tell  us  how  a  king 
comes  to  be  king,  and  how  he  can  cease  to  be  king,  how  a 
man  comes  to  be  a  peer  of  the  realm,  when,  where  and  how 

1  Jurisprudence^  p.  363. 


534  Constitutional  History  PERIOD 

men  are  elected  to  the  House  of  Commons,  how  parliament 
is  summoned,  prorogued,  dissolved,  how  men  become  privy 
councillors,  secretaries  of  state,  judges,  justices  of  the  peace, 
aldermen,  poor  law  guardians — for  constitutional  law  deals  not 
only  with  the  structure  of  the  sovereign  body,  but  also  with 
the  structure  of  inferior  bodies  possessing  legal   powers  of 
central  or  local  government.     But  if  we  ask  what  can  these 
bodies  and  these  officers  do,  wh^t  are  their  functions,  then, 
according  to  the  general  idea,  we  should  be  sent  to  adminis- 
trative law;  thus,  if  we  ask  what  are  the  royal  prerogatives, 
what  are  the  privileges  of  the   House  of  Commons,  whaf 
powers  has  a  secretary  of  state,  a  justice  of  the  peace,  a  town 
councillor.     But  if,  with  this  idea  before  us,  we  attempted  to 
state  the  law  of  England,  or,  I  should  imagine,  the  law  of  any 
other  country,  we  should  probably  find  ourselves  involved  in 
many  difficulties.     For  instance,  it   is  certainly  the  duty  of 
constitutional  law  to  state  how,  when,  and  by  whom,  parliament 
can  be  summoned  and  prorogued.    Attempting  to  do  this,  we 
immediately    find    ourselves    describing    one    of   the    king's 
prerogatives.     It  is  certainly  the  duty  of  constitutional  law  to 
define  the  composition  of  the  House  of  Lords,  but  immediately 
we  have  to  state  another  of  the  king's  prerogatives — the  power 
of  making  peers.    So  again,  if  we  have  to  describe  the  structure 
of  the  ministry,  we  must  deal  with  the  functions  of  the  king- 
in  appointing  and  dismissing  ministers;  while  if  we  descend 
to  inferior  organs,  such  as  municipal  corporations  and  boards 
of  guardians,  we  shall  have  to  speak  freely  of  the  functions  of 
the  local  government  board  and  the  secretaries  of  state.     In 
short,  it  is  impossible  to  describe  the  structure  of  some  organs 
without  describing  the  functions  of  others,  for  it  is  among-  the 
most  important  functions  of  some  organs,  especially  the  higher, 
to  determine  the  structure  of  other  organs.     Thus,  taking  me 
view  that  constitutional  law  deals  with  structure,  not  with 
function,  we  still  cannot  get  through  our  constitutional  law 
without  describing  very  many  functions  of  the  highest  organs ; 
we  -have,  for  instance,  to  describe  many  of  the  royal  pre- 
rogatives, the  functions  of  the  king.     The  question  then  arises 
whether  it  is  convenient  to  break  up  so  important  a  topic  as 
the  royal  prerogatives,  in  order  to  deal  with  some  parts  of  it 


V  Difficulty  of  Definition  535 

under  the  heading  of  constitutional  law,  and  to  relegate  other 
parts  to  various  sub-heads  of  administrative  law. 

Professor  Holland  is  alive  to  the  inconvenience  of  such  a 
course  of  procedure.  He  expressly  includes  an  enumeration  of 
the  king's  prerogatives  under  constitutional  law,  also  he  in- 
cludes under  the  same  head  the  whole  topic  of  parliamentary 
privileges,  and  I  venture  to  think  that  he  is  right  in  so  doing. 
A  book  on  constitutional  law,  which  did  not  deal  with  royal 
prerogatives  and  privileges  of  parliament,  would,  I  think,  be 
generally  considered  as  worse  than  imperfect.  This  brings 
him  to  abandon,  for  the  sake  of  convenience,  the  general  idea 
with  which  he  started,  namely,  that  constitutional  law  deals 
with  structure,  and  administrative  law  with  function.  His 
ultimate  opinion  seems  to  be  that  constitutional  law  deals 
with  structure  and  with  the  broader  rules  which  regulate 
function,  while  the  details  of  function  are  left  to  administra- 
tive law. 

So  far  as  I  am  aware,  this  is  in  accordance  with  common 
usage,  though  we  certainly  use  the  term  constitutional  law  now 
in  a  wider  and  now  in  a  narrower  sense,  and  we  shall  look  in 
vain  for  any  such  term  as  administrative  law  in  our  orthodox 
English  text-books.  But  I  may  illustrate  the  difficulty  of 
drawing  convenient  lines.  It  would  be  generally  allowed  that 
the  law  as  to  parliamentary  elections  is  a  most  important  part 
of  constitutional  law:  that,  for  instance,  the  extension  of  the 
county  franchise,  from  the  40  shilling  freeholders  to  many 
other  classes,  constituted  a  great  change  in  our  constitutional 
law.  Then  again  it  would  be  allowed  that  the  introduction 
of  the  ballot  was  another  great  change — that  members  of  the 
House  of  Commons  are  elected  by  secret  voting  is,  I  take  it, 
distinctly  a  rule  of  constitutional  law.  But  then  our  law  has 
minute  provisions  as  to  how  the  registers  of  voters  are  to  be 
made  up  and  revised,  and  again  it  has  minute  provisions  as  to 
the  conduct  of  the  election,  the  custody  of  the  voting  papers 
and  so  forth ;  in  order  to  secure  secrecy  it  descends  to  very 
small  details.  Now  shall  we  call  aH  these  small  rules,  rules  of 
constitutional  law  ?  Would  our  code  of  constitutional  law 
describe  all  the  duties  of  revising  barristers  and  returning 
officers  ?  That,  I  think,  is  a  question  of  convenience,  a  ques- 


536  Constitutional  History  PERIOD 

tion  which  the  maker  of  a  complete  code  of  English  law  would 
have  to  consider  very  carefully,  but  still  a  question  of 
convenience,  a  question  to  be  solved  by  the  art  of  draftsman- 
ship. One  of  the  points  that  he  would  have  to  consider  would 
be  the  desirability  of  avoiding  repetitions.  Very  possibly  he 
would  find  it  convenient  to  bring  under  the  head  of  constitu- 
tional law  the  broad  rules  which  settle  the  qualification  of 
electors,  and  leave  the  details  as  to  the  making  and  revision 
of  the  registers  to  come  under  some  chapter  of  administrative 
law.  Very  possibly  he  would  find  it  convenient  to  state,  as  a 
rule  of  constitutional  law,  that  elections  are  to  be  made  by 
secret  voting,  and  to  place  the  description  of  the  process  of 
election,  the  rules  which  regulate  the  conduct  of  returning 
officers,  under  some  chapter  of  administrative  law. 

In  this  country  such  questions  would  be  questions  of 
convenience,  because  our  constitutional  law  has  no  special 
sanctity.  It  would  not  be  so  everywhere.  Some  countries 
have  constitutions  which  cannot  be  altered  by  the  ordinary 
legislature.  In  such  countries  it  is,  of  course,  a  fact  of 
immense  importance  that  a  particular  rule  is,  or  is  not,  a  rule 
of  the  constitution ;  if  it  is  not,  it  can  be  repealed  by  the 
legislative  assembly,  if  it  is,  then  to  repeal  it  may  require  an 
appeal  to  the  people,  or  there  may  be  no  recognized  mode  of 
repealing  it  at  all.  But  here  in  England  that  part  of  the  law 
which  we  call  constitutional  has  no  special  sanctity.  The 
hours,  during  which  an  election  may  be  held,  are  fixed  by 
statute,  the  succession  to  the  throne  is  fixed  by  statute; 
neither  the  one  nor  the  other  could  be  altered  except  by 
statute,  but  the  same  statute  might  alter  both,  the  one  as 
easily  as  the  other.  So,  I  repeat  it  once  more,  the  demarcation 
of  the  province  of  constitutional  law  is  with  us  a  matter  of 
convenience.  I  do  not  think  that  we  have  any  theory  about 
it  which  can  claim  to  be  called  orthodox.  I  think  that 
Austin's  definition  is  decidedly  too  narrow.  I  think  that 
Professor  Holland's  description  is  fairly  conformable  to  our 
ordinary  usage,  but  that  the  line  between  the  constitutional 
and  the  administrative  departments  is  one  which  it  is  very 
hard  to  draw. 

And  as   with  constitutional  law  so  with   constitutional 


v  Results  not  Struggles  537 

history.  This  title  was,  I  believe,  a  new  one  when  Hallam 
chose  it  for  his  great  work,  and  it  was  liable  to  misconstruction. 
By  this  time  it  is  well  rooted  in  our  language,  but  there  seems 
to  be  no  great  room  for  difference  of  opinion  as  to  its  meaning. 
But  I  think  that  we  can  see  a  steady  tendency,  very  manifest 
in  the  great  work  of  Stubbs,  to  widen  the  scope  of  the  term  in 
one  direction,  to  narrow  it  in  another.  On  the  one  hand  we 
no  longer  conceive  that  the  historian  of  our  constitution  has 
done  his  duty  when  he  has  told  us  of  kings  and  parliaments ; 
at  least,  as  regards  early  times,  we  expect  him  to  speak  of  the 
courts  of  law,  of  the  sheriffs,  of  local  government,  of  hundred 
courts  and  county  courts.  On  the  other  hand  we  expect  him 
to  give  us  a  history  of  results,  rather  than  a  history  of  efforts 
and  projects.  If  we  look  at  May's  book  we  find  it  to  be  to  a 
large  extent  a  history  of  efforts  and  projects:  it  is  full  of 
proposals  to  alter  the  law,  of  the  strife  between  Whigs  and 
Tories — the  struggle  over  the  Reform  Bill  for  example. 
Some  people  seem  to  think  that  a  bill  loses  all  its  importance 
at  the  very  moment  when  it  becomes  law,  that  it  ceases  to 
be  a  subject  for  constitutional  history,  or  indeed  for  history 
of  any  kind,(  when  the  last  division  has  been  taken.  But 
that  surely  is  a  perverse  view,  and  I  hope  that  it  is  becoming 
an  old-fashioned  view  :  political  struggles  are  important,  but 
chiefly  because  they  alter  the  law.  Constitutional  history 
should,  to  my  mind,  be  a  history,  not  of  parties,  but  of 
institutions,  not  of  struggles,  but  of  results ;  the  struggles  are 
evanescent,  the  results  are  permanent  That  is,  I  think,  the 
view  taken  by  the  latest  and  greatest  of  the  historians  of  our 
constitution,  and  I  hope  the  day  may  come  when  someone 
will  take  up  the  tale  where  Stubbs  has  dropped  it,  and  bring 
the  history  of  our  constitution  down  to  modern  days,  as  a 
history  of  institutions,  a  history  of  one  great  department  of 
law,  and  of  its  actual  working. 

It  will  perhaps  occur  to  you  that  I  am  making  an  apology, 
for  I  have  spoken  a  great  deal  about  modern  statutes,  and  not 
a  word  of  Whigs  and  Tories,  Liberals  and  Conservatives.  Well, 
I  know  that  a  great  many  apologies  might  be  required  of  me, 
but  not,  I  think,  for  this.  I  have  been  trying  to  turn  your 
thoughts  away  from  what  I  think  to  be  an  obsolete  and 

34—5 


538  Constitutional  History  PERIOD 

inadequate  idea  of  the  province  of  constitutional  history,  I 
have  been  asking  you  to  set  your  faces  towards  the  rising  sun. 
And  the  sun  will  rise,  not  a  doubt  of  it. 

The  practical  application  of  these  remarks  should  be 
obvious.  The  student  who  is  set  to  read  English  constitu- 
tional law  will,  if  he  be  prudent,  take  a  wide  view  of  his 
subject.  Even  if  his  sole  object  be  to  obtain  marks  in  an 
examination,  he  will  do  well  to  recognize  the  fact  that  the 
limits  of  constitutional  law  are  not  strictly  defined,  and  that 
his  examiners  may  not  be  disposed  to  make  them  narrow. 
And  when  he  is  asked  to  study  constitutional  history  as  well 
as  constitutional  law,  the  expedience  of  wide  reading  will  be 
the  more  apparent.  Regarding  the  matter  historically  we  may 
say  that  there  is  hardly  any  department  of  law  which  does  not, 
at  one  time  or  another,  become  of  constitutional  importance. 
Go  back  for  a  moment  to  the  Middle  Ages.  If  we  are  to  learn 
anything  about  the  constitution  it  is  necessary  first  and 
foremost  that  we  should  learn  a  good  deal  about  the  land 
law.  We  can  make  no  progress  whatever  in  the  history  of 
parliament  without  speaking  of  tenure,  indeed  our  whole 
constitutional  law  seems  at  times  to  be  but  an  appendix  to  the 
law  of  real  property.  It  would  be  disastrous  therefore,  as  well 
as  stupid  advice,  were  I  to  tell  you  that  you  could  read  con- 
stitutional history  without  studying  land  law — you  cannot  do 
this,  no  one  can  do  it.  And  then  again,  turn  to  the  seventeenth 
century  and  the  great  struggle  between  king  and  parliament ; 
this  truly  is  a  constitutional  struggle  in  the  strictest  sense  of 
the  word,  it  is  a  struggle  for  sovereignty,  but  how  can  you 
study  it  without  knowing  something  of  criminal  law  and 
criminal  procedure?  At  more  than  one  moment  the  whole 
history  of  England  seems  to  depend  on  what  it  is  possible  to 
describe  as  a  detail  of  criminal  procedure — the  question  whether 
1  He  is  committed  to  prison  per  speciale  mandatum  domini  regis' 
is  or  is  not  a  good  return  to  a  writ  of  habeas  corpus.  How  can 
we  form  any  opinion  about  that  question  unless  we  know 
something  about  the  ordinary  course  of  criminal  procedure  ? 
A  modern  code-maker  would  very  possibly  not  put  the 
provisions  of  the  Habeas  Corpus  Act  into  that  part  of  the 
code  which  dealt  with  constitutional  law — he  would  keep  it  for 


v  Unity  of  the  Law  539 

the  part  which  dealt  with  criminal  procedure — still  we  can  see 
that  the  history  of  the  writ  is  very  truly  part  of  the  history  of 
our  constitution ;  if  the  king  had  been  able  to  commit  to 
prison  without  giving  any  reason,  he  would  have  had  at  his 
command  a  potent  engine  for  controlling  parliament,  and 
might  have  succeeded  in  his  effort  to  make  himself  an  absolute 
monarch. 

I  have  some  little  fear  lest  the  study  of  what  we  call 
general  jurisprudence  may  lead  you  to  take  a  false  view  of 
law.  Writers  on  general  jurisprudence  are  largely  concerned 
with  the  classification  of  legal  rules.  This  is  a  very  important 
task,  and  to  their  efforts  we  owe  a  great  deal — it  is  most 
desirable  that  law  should  be  clearly  stated  according  to  some 
'rational  and  logical  scheme.  But  do  not  get  into  the  way  of 
thinking  of  law  as  consisting  of  a  number  of  independent 
compartments,  one  of  which  is  labelled  constitutional,  another 
administrative,  another  criminal,  another  property,  so  that  you 
can  learn  the  contents  of  one  compartment,  and  know  nothing 
as  to  what  is  in  the  others.  No,  law  is  a  body,  a  living  body, 
every  member  of  which  is  connected  with  and  depends  upon 
every  other  member.  There  is  no  science  which  deals  with 
the  foot,  or  the  hand,  or  the  heart.  Science  deals  with  the 
body  as  a  whole,  and  with  every  part  of  it  as  related  to  the 
whole.  Who,  at  this  moment,  can  vote  in  parliamentary 
elections?  Begin  answering  that  question,  and  you  begin  to 
talk  about  freeholders,  copyholders,  leaseholders;  but  you 
cannot  talk  about  them  with  much  intelligence  unless  you 
understand  some  real  property  law.  Life  I  know  is  short,  and 
law  is  long,  very  long,  and  we  cannot  study  everything  at 
once;  still,  no  good  comes  of  refusing  to  see  the  truth,  and 
the  truth  is  that  all  parts  of  our  law  are  very  closely  related 
to  each  other,  so  closely  that  we  can  set  no  logical  limit  to  our 
labours. 


APPENDIX 

By  the  Parliament  Act  of  1911  (i  and  2  Geo.  V,  c.  13)  it 
is  provided 

1.  That   if  a   Money  Bill  (subsequently  defined  as  'a 
Public  Bill  which  in  the  opinion  of  the  Speaker  of  the  House 
of  Commons  contains  only  provisions  dealing  with  all  or  the 
following  subjects ' — a  list  follows)  is  sent  up  to  the  House  of 
Lords  at  least  one  month  before  the  end  of  the  session  and 
is  not  passed  by  the  House  of  Lords  without  amendment 
within  one  month  after  it  is  sent  up,  the  Bill  shall,  unless 
the  House  of  Commons  direct  the  contrary,  be  presented  to 
the  King  and  become  an  Act  of  Parliament  on  the  Royal 
Assent  being  signified   notwithstanding  that  the   House  of 
Lords  have  not  consented  to  the  Bill. 

2.  That  if  any  Public  Bill  (other  than  a  Money  Bill  or 
a  Bill   containing   any  provision   to   extend   the   maximum 
duration  of  Parliament  beyond  five  years)  is  passed  by  the 
House  of  Commons  in  three  successive  sessions  (whether  of 
the  same  Parliament  or  not)  and  having  been  sent  up  to  the 
House  of  Lords  at  least  one  month  before  the  end  of  the 
session  is  rejected  by  the  House  of  Lords  in  each  of  those 
sessions,  the  Bill  shall  on  its  rejection  a  third  time  by  the 
House  of  Lords,  unless  the  House  of  Commons  direct  the 
contrary,  be  presented  to  the  King  and  become  an  Act  of 
Parliament  on   the    Royal    Assent   being  signified   thereto, 
provided  that  two  years  have  elapsed  between  the  date  of 
the  second  reading  in  the  first  of  these  sessions  in  the  House 
of  Commons  and  the  date  at  which  it  passes  the  House  of 
Commons  in  the  third  of  these  sessions. 


Appendix  541 

3.  '  That  a  Bill  shall  be  deemed  to  be  rejected  by  the 
House  of  Lords  if  it  is  not  passed  by  the  House  of  Lords 
either  without  amendment  or  with  such  amendments  only  as 
may  be  agreed  to  by  both  Houses. 

4.  That  the  House  of  Commons  may  in  the  passage  of 
such   a   Bill   through   the   House   in   the   second  and  third 
sessions  suggest  amendments  without  inserting  them  in  the 
Bill.     If  these  amendments  are  agreed  to  by  the  House  of 
Lords,  they  shall  be  treated  as  amendments  made  by  the 
House  of  Lords  and  agreed  to  by  the  House  of  Commons. 

5.  That  the  duration  of  Parliament  should  be  reduced 
from  seven  to  five  years. 

The  general  effect  of  these  provisions  is  (i)  to  deprive  the 
House  of  Lords  altogether  of  its  power  of  amending  or 
rejecting  Money  Bills,  (2)  to  restrict  the  House  of  Lords  to 
a  suspensive  veto  in  respect  of  Bills  (other  than  Money  Bills 
or  Bills  to  prolong  the  duration  of  Parliament),  as  may  be 
passed  by  the  House  of  Commons  in  three  successive  sessions 
during  the  first  two  years  of  Parliament,  (3)  to  enable  the 
country  to  pronounce  more  rapidly  upon  the  action  of  a 
ministry  so  passing  bills  into  statutes  in  defiance  of  the 
opposition  of  the  Second  Chamber. 


INDEX. 


Abbesses,  168 

Abbots,  82,   166,  238 

Abjuration,  Oath  of,  365 

Act  of  Settlement,  286,  288,  192,  313, 

3i8,  343-5*  365-6,  367-8,  390*  427, 

480 

Administrative  Law,  528,  533 
Admiralty,  393 
Agriculture,  Board  of,  413 
Aids,  27,  64,  1 80 
Alfred,  2,  148 
Aliens,  426-8 
Ambassadors,  426 

Anderson,  resolution  in,  274  ^ 

Anglo-Saxon  Law,  1-6,  8 
Anne,  285-6,  331,  348,  395,  423 
Annual  Indemnities,  516 
Annual    Parliaments,    177,   182,   248, 

250-1,  393,  295,  373 
Appeal,  the,  109,  128-9,  213,  230,  480 
Appeal,  Court  of,  464-5,  467    t 
Appellate  Jurisdiction  Act,  350 
Appellate  Jurisdiction  of  Council,  136, 

337.  339-4?>  463,  523 
Appellate  Jurisdiction  of  Lords,  136, 

214-5,  316-7,  335,  350,  467      . 
Appropriation  of  Supplies,  183-4,  3°9~ 

10,  385,  433,  444-7 
Arms,  Assize  of,  162,  276 
Army,  275-80,  335-9,  447-54 
Army  Act,  448-53*  49° 
Army  Council,  455 
Array,  Commissions  of,  377 
Arrest  of  the  Five  Members,  321-3 
Articles  of  War,  449-5 1»  45 7>  49° 
Ashford  v.   Thornton^  213 
Assisa,  126,  130 
Assise,  Commission  of,  138-9 
Assizes  of  Henry  II,  12,  13,  109,  ru- 

13,  124-6,  137-9,  I38~9»  162,  276 
Athelstan,  148 
Attainder,  215-6,  346,  319 
Attaint,  131,  263,  315-6  N 

Austin,  J.,  101,  528-31,  536  > 

Bacon,  Lord,  246 
Bail,  315 


Ballot  Act,  370,  496 

Ballot  (Militia),  456,  458-60,  502 

Bangorian  Controversy,  311,  513 

Bank  of  England,  442 

Baronage,  64-6,  78-84,  166-172 

Bar  ones  majores,  54-6,  80 

Bate's  Case,  258-9 

Battle,  Trial  by,  9,  112,   120,  212-3 

Becket,  10,  u,  67 

Beneficiuni)  153,  158-9 

Benefit  of  Clergy,  229-30 

Benevolences,   181,  260 

Berkeley  Peerage  Case,  83 

Bill  of  Rights,  284,  288,  296,  303, 
3<>5»  3°6,  309,  312,  315,  321,  32S, 
373,  388 

Births,  registration  of,  504 

Bishops,  171-2,  238-9,  347 

Black  Death,  208 

Blackstone,  Sir  W.,  142-3,  260,  301, 
333,  415-7,  419,  424-5*  429,  433> 
466,  482,  516-7 

Blair,  Sir  A.'s  case,  317 

Eland's  case,  244 

Board  of  Trade,  412 

Boards  of  Health,  498 

Boroughs,  definition  of,  54;  privilege^ 
of,  52-4 ;  representation  of,  73, 
88-90,  173-4.  239-40,  289-91  ; 
government  of,  291,  495-7;  fran- 
chise of,  355~7»  359-63»  parlia- 
mentary and  municipal,  495-6 

Bracton,  17,  18,  21,  22,  100,  102,  104. 
120,  134,  156,  269 

Bramaugh  cases,  367,  522 

Bribery,  electoral,  371 

Britton,  21-2 

Burial  Boards,  499 

Burnell,  R.,  221 

BubhelPs  case,  316 

Cabal,  389 

Cabinet,  origin  of,  389-95;  character- 
istics of,  395-400;  constitution  of, 
402-5 

Canon  Law,  n,  509 

Canute,  3,  6,  40,  107,  148 


Index 


543 


Capitular    Election,     63,     172,    739, 

347 

Carucage,  67 

Catholic  Emancipation,  520 
Catholic  Relief  Act,  366,  519-20 
Catholics,  365-7,  514,  515-21 
Central  Government,  54-105 
Chancellor,  Lord,  69,  91,  133-4,  202- 

3,  220,  221-6,  392-3,  413,  466-8 
Chancellor  of  the  Exchequer,  135,  392, 

403 
Chancery,   Court  of,  69,   114,  221-6, 


Channel  Islands,  337 

Charles  I,  282-3,  286-7,  289-90,  292- 

3»  307-8»  3^5-6 
Charles   II,  282-3,   286-7,   289,   291, 

*95-6,    3°9-IO»    3*7-8,    389*    433» 

438-9 

Chiltern  Hundreds,  372 
Church  and  State,   101-2,  506-13 
Church  Courts,  508-9,  522-6 
Church,  English,  506-26;   Irish,  336, 

347;   Scottish,  332 
Church  property,  510- 
Civil  List,  435-8   / 
Clarendon,   Assize  of,   46,    109,    127, 

129;   Constitutions  of,  10 
Clarendon,  Lord,  327 
Clergy,  legal  position  of,  525-6;  taxa- 

tion of,  311;  representation  of,  73-8, 

166,   169,    185-6,   238-9,   240,   247, 

288-9,  347»  .W-8 
Clergyabie    Offences,    see    Benefit    of 

Clergy 

Clericis  laieos,  95 
Clifton  Barony,  83 
Coinage,  right  of  debasing,  260,  419 
Coke,  Sir  E.,  83,   142,  228,  239,  259, 

262-4,  268-71,  274,  300-1,  305,  307, 

335,  420,431,  479,  515 
Colonies,  337-41 
Comitts  of  Tacitus,  56,   146 
Commander-in-Chief,  454 
Commendams,  270-1 
Commendation,  149-50 
Committee  of  privilege,  79 
Common  Law,  22,  471 
Common  Pleas,  69,  133,  209-10  <* 

Commons,  House  of,  85,  175-6,  182, 

239-40,  247-8,  389-92,  351-80 
Commune  Const/turn  Regni,  64 
Commutation,  power  of,  480 
Compnrgation,  see  Oath-helpers 
Concilium    Ordinarium,    91,    and    see  ^ 

Privy  Council 

Confirmatio  Carlarum,  96,  308 
Consolidated  Fund,  440-5,  472 
Constable,  the,  266 


Constables,  46,  233,  235-6,  276,  486- 

9»  50* 

Constitution,  Legal  theory  of,  415-8 
Constitutional  Law,  526-39 
Contempt,  323-4,  377-8 
Conventicle  Act,  515 
Convention  of  1689,  283-4,  296 
Convention  Parliament,  282-3,  288-9, 

^95 
Conventions  of  the  Constitution,  342, 

398,  527-8 

Convocations,  77-8,  182,  240,  311,  513 
Copyhold,  49,  50,  204-5 
Coronation     Oaths,     98-100,     286-8, 

„  343-4 

Coroners,  43-4,  71 

Corporation  Act,  515 

Corporation,  Idea  of,  54 

Council  of  the  North,  263-4,  311 

Council  of  Wales,  264,  3  1  1 

County  Associations,  459 

County  Councils,  499-500 

County   Court,    39-44,   69,    85-7,    89, 

105-6,   132,  493 

County  Court  (Modern),  429,  463-5 
County  Franchise,  85-8,  353-8 
Court  Baron,  46-52,  204 
Court,  Customary,  49,  106,  204-5 
Court  Leet,  46,  50 
Court  Martial,  451-2 
Court  for  Crown  Cases  reserved,  476 
Court    of    High    Commission,    264-6, 

269,  312 
Courts,  power  of  creating  by  preroga- 

tive, 419-21 
Craft  Guild,  53 
Criminal  Courts,  473-7 
Criminal  Information,  231,  475 
Criminal  Justice,  480-1 
Criminal  Law,  226-32,  477-8 
Cromwell,  Oliver,  294-5,  334 
Crown,  The,  418,  479-80 
Curia  Regis^  61-4,  91,   105-6,    162 


Danby's  case,  310,  318,  328,  480 

Danegeld,  58,  68,  9*2 

Danelaw,  3 

Darnel  case,  307,  313 

Declaration  of  Rights,  284,  296,   309, 

312,  321  ^* 

Delegated  Powers,  407 
Demise  of  the  Crown,  297,  374 
Deposition,  Power  of,  103 
Dialogus  de  Scaccario,   13 
D'^PSHsmg^,.  Power,  188,  302-5 
Disqualification's  C~  363~4>    367-81 

513-4 

Dissolution,  Power  of,  374,  422 
Divisional  Courts,  472 


544 


Index 


Domesday  Book,  8,  9,   155 
Domicile,  341 
Duties  (legal),  501-6 

Eadric,  a 

Ealdorman  or  eorl,  39-40 
Edgar,  2 
Edmund,  a 

Education  Acts,  504,  505;  Depart- 
ment, 413 

Edward  the  Confessor,  3,  59,  97,  151 
Edward  the  Elder,  2 
Edward    I,    18-23,    73-8,    83-5,    91, 

95-6.  99>  l6*'  f79»  n6,  330 
Edward    II,    99-100,    177,    179,    190, 

*77 

Edward  III,   166,  179,    181,  277 

Edward  IV,  174,  178,  181,  194,  199, 
221,  266 

Edward  VI,  239,  249 

Elections  (Parliamentary),  173-4;  Dis- 
puted, 247-8,  291,  370-1 

Electoral  districts,  362-3 

Eliot,  Sir  John,  231,  242,  314,  321 

Elizabeth,  238-9,  242,  249,  256,  261, 
263,  267,  325,  512 

Enlistment,  452-3 

Equity,  221-6,  466-71 

Escheats,  29-30,    in 

Estates  of  the  Realm,  74-90,  181-3 

Ethelbert,  i,  2 

Ethelred  the  Unready,  98,   127 

Evidence,  469-70,  503 

Exchequer,  13,  63,  68,  133,  135, 
209-10 

Excise,  434-7 

Excommunication,  524 

Executive  and  Legislative,  415-8,  430 

Expulsion  from  House  of  Commons, 

37- 

Eyre,  Articles  of  the,  127,   137-8 
Eyre,  Governor,  492 

Felony,  iio-i,  229-30,  478 

Fenwick,  Sir  J.,  319,  386 

Ferrer's  case,  244 

Feudal  Courts,  105-6,  151 

Feudal  Revenues,  433-4 

Feudalism,  23-4,  38-9,  57,  141-64 

Finch,  C.  J.,  299,  300 

Finch,  H.,  Lord  Nottingham,  312,  466 

Fines  on  alienation,  29 

Fitzharris  case,  317 

Fitz waiter  Barony,  82 

Five  Mile  Act,  515 

Flambard,  R.,  160 

Floyd's  case,  244,  24^ 

Folkland,  57,  93,  146-7,  150,  431 

Forests,  13 


Fortescue,    Sir   J.,    193,    198-9,    211, 

213-4,    221 

1  Franchise,  Parliamentary,  85-90,  173-51 

240,  290-1,  352-63 
Frankalmoign,  25,  157 
Freehold,  35-8 
Fyrd,  162 

Gaol  Delivery,  140 

George  I,  395,  397 

George  II,  395,  397 

George  III,  395,  397,  4°9»  494 

George  IV,  408-9 

Gesith,  56,   146 

Glanvill,  7,  13,  18,  22,  97,  103,   in, 

115,  124,   156 

Gloucester,  Statute  of,   132,  205 
Grand  Assize,  112,  124 
Grand  Jury,    211-12,    474-5,    and   see 

Jury 

Grand  Sergeanty,  30 
Great  Officers  of  State,  390-1,  428-30 
Guardians  of  the  Poor,  497-8 

Habeas  Corpus  Act,  314-5,  477 ;  writ, 

27i-5»  3'3~4»  3*4»  378,  53^ 
Hale,  Sir  M.,   19,  260,  419 
Hall's  case,  244 
Harold,  Election  of,  59,  60 
Haxey's  case,  241 
Henry  I,  8,  9,  10,  53,  60,  63,  97,  137, 

159-60 
Henry  II,  10-12,41,66-7,  109,  111-13, 

124,  137,  162-3,  333 
Henry  III,    14-18,  70-1,  91,  95,  97, 

102-4,  ^33'  '34»  *°o»  482 
Henry  IV,   182,  184,  191-2,  217 
Henry  V,  173,  178,  192,  201,  217,  278 
Henrv  VI,  173-4,  178,  193-4,  200-1, 

2IO 

Henry  VII,  178,  181,  183,  195,  200, 

202,  219-20,  333 
Henry  VIII,  227,  239,  248,  251-3,  256, 

258,  263,  264-5,   286-7,   33°»   334» 

347,  5U 

Heresy,  509,  515-6,  522 
Heriot,  148,  159-60 
High  Steward,  see  Lord  High  Steward 
Highway  Boards,  499 
Hlothar,  2 
Hobbes,  T.,  297-8 
Holland,  T.  H.,  528,  532-5 
Homage,  26 
Home  Secretary,  410-1 
Home  Tooke,  513 
Hubert  de  Burgh,  133,  200 
Hundred,  44,  493,  500 
Hundred  Court,  44-6,  105-6,  132 
Hundred  Rolls,  88 


Index 


545 


Impeachment,  215,  246, 
327,  477,  480 

Impositions,  258-9,  306-8 

Impressment,  280,  453,  461-2 

Indemnity,  Acts  of,  386-7 

India,  411 

Indictable  Offences,  230-1 

Indictment,  109-10,  128-31,  213,  474- 
5,  480 

Ine,  2 

Infant  and  Incapable  Kings,  344-6 

Inquest  of  Sheriffs,  41 

Inquest  (Prankish),  7,  9,   121-2 

Inquest  (Norman),  122-4 

Ireland,  Parliament  of,  333-5  ;  repre- 
sentation of,  290;  Union  of,  335-6, 

349-51 

Irish  Peers,  350-1 
Itinerant  Justices,   43,  63,  69,   127-8, 

137-41,  210 

James  I,  238,  239,  243,  250,253,  261-2," 

268-71,  279,  331 
James  II,  283-5,  287,  291,  304-6,  312, 

328-9 

Jews,  365-7,  506 
John,  68,  93,  97,  103,  134,  333 
Judges  summoned  to  Parliament,  84 ; 

independence  of,  312-3,  478-9 
Judicature  Act  of  1875,  471 
Juries,  independence  of,  315-6 
Jury,  7,  13,  71,  ii2,  115-31,  211-13, 

219,  230-1,  468,  472,  474-5,  503 
Justice,  Administration  of,  105-41,  162- 

3,   204-26,   311-20,   462-84;    High 

Court  of,  464,  471-2 
Justices  of  the  Peace,  206-9,  218,  231-3, 

*35>  486-9,  493-9 
Justiciar,  63,  91,  133 

Keeper  of  the  Privy  Seal,  203 

Kentish  Laws,  i,  2,  6;  Custom  of 
Borough,  English,  37 

Kingship,  origin  of,  55-60;  hereditary 
character  of,  97-8 ;  conception  of, 
98-100;  legal  theory  of,  100-105  ; 
powers  of,  195-9;  constitution  of, 
281-8;  after  1689,  343-6;  depend- 
ence on  ministers,  392-9;  new  sta- 
tutory powers  of,  399;  classification 
of  powers,  422-30 

King's  Bench,  69,   133-5,  209-10 

King's  Court,  61-4,  105-41 

King's  Peace,  108-10,  197 

King's  seals,  202-3 

Knights  of  the  Shire,  71-5*  81,  85-8, 
172-3.  291-2 

Knightrs  service,  25-30,  157-8 


Lambard,  W.,  232,  236,  493 
Lancastrian  view  of  the  Constitution, 

198-9 

Landreckt,  156 

Land-system,  23-39,  see  Feudalism 
Laud,  Archbishop,  286,  319 
Law  Officers,  481 ;  sphere  of,  505-6 
Leges  Edwardi  Confessor  is,  8,  10,  108 
Leges  Henrici  Primi,  8,  10,  70-1,  107- 

8,  1 10,  169 

Leges  Willelmi  Print,  8,   10 
Legislation,    source   of,    96;    develop- 
ment of,  184-90;   for  dependencies, 
337-8;  change  in  character  of,  383-7 ; 
indistinct  sphere  of,   196 
•Lehnrechti  156 
Lex  Salica*  i,  7,  8 
Life  Peers,  79,   167-8,  348 
VLocal    Government,     39-541    204-11, 
232-36,    492-506;     Local    Govern- 
ment Act,  499-500 

Government   Board,   384,    412, 


Locke,  John,  290,  291 

London,  53,   117,  175,  29^,^86-7  ,. 

Long  Parliament,  282,  253-5,  31172 

Lord  High  Admiral,  393 

Lord    High   Steward,    Court  of,    170, 

214,  318-9 

Lord  High  Treasurer,   135,  220,  392 
Lord  Lieutenant,  234-5,  455-°"»  459 
Lord  President  of  the  Council,  392 
Lords,  House  of,  78-9.  136,  169,  213-5, 

338-9,   245-6,*^$^;  288-9,    310-1* 

316-7,  335,  347~5T>  473 
Lords  of  Appeal,  350-1,  473 

Magisterial  Examination,  477 

Magna  Carta,  64,  66,  69,  93,  129,  133, 

138,  160,  169,  172,  183,  313,  333 
Man,  Isle  of,  337 
Manor,  47-8,  57 
Manor  Court,  48-52,   133 
Markham,  228 

Marlborough,  Statute  of,  17,  27,  73 
Marriage  Law,   11 
Marriage,  Right  of,  28 
Marriage  (Royal)  Act,  344 
Marshall,  The,  266 
Marshall,  William,  70,  200 
Martial  Law,  266-8,  279,  324-5,  328, 

490-2 

Mary,  239,  249,  267 
Melville's  case,  477 
Merchant  Guild,  53 
Metropolitan  Police,  487 
Middlesex,  Sheriffs  of,  375,  378 
Militia,     162,    234-5,    276-9,    325-6, 

455*9 


34* 


Index 


Min  sterial  Responsibility,  203,  393-4, 
31A    484;    system,    368-9;    offices, 

Ministry,  3^0 

Minorities,  200-2 

Misdemeanours,  230-1,  478,  488 

Mompesson,  Sir  G.,  246 

Monasteries,  511 

Money-bills,  origination  of,  182,   247, 


Monopolies,  260-1 

Montfort,  see  Simon 

MiMdbryeC)  108 

Municipal    Reform,     359-60,    495-7  ; 

Corporations,  Act  of  1882,  413-4 
Murdrum,  46 
Mutiny  Acts,  328-9,  447-8 

National  Deot,  438-47 

Nationality,  341 

Naturalization,  384,  42^-8 

Navy,  460-3 

Nisi  Priusi  139-41 

Nolle  pwsequi,  303,  481 

Norman  'Conquest,  6-10,  151-61 

Norman  Law,  7 

Northampton*  Assize  of,   13,   128-9 

Nowell's  case,  247 


Oath-helpers,:  115-8,  * 

Oaths,    115-6;   Parliamentary^   364-61 

Privy  Councillors,  400 
Offa,  i  * 

Oxdeal,  18,  115,  119-20,  129-30 
Orders  in  Council,  394-5*  405-7*  4^3» 

496 

Ordinances,  187-8 
Outlawry,  475 
Oxford,  Provisions  of,  73 
Oyer  and  Terminer,  140-1 

Palatine  Earldoms,  41;   Counties,  90, 

163,  289,  465 

Pardon,  Right  of,  476,  479-80 
Parliament,    i6t   20,   21,    64-96,   163, 

166-90,    238-55,    288-97,    337~40, 

347-87 

Parry  s  case,  244 
Party  government,  3C)5-7 
Pateshuli,  M,,  21 
Patey's  case,  324 
Patronage  (royal),   428-30  j  (ecclesias- 

tical), 510 

Peacham's  case,  270 
Peerage,  167-72,  288-9,  348-51,  377» 

476-7 

Peerage  .  Bills,  348 
Peers,  Trial  by,  169-71,  214,  318-9 
Petition  of  Right,  482-5 


Petition  of  Right,  The,  293,  307,  313, 

327*  49* 

Petition,  Right  of,  323 
Petty  Jury,  212-3,  and  see  Jury 
Petty  Offences,  231-2 
Petty  Sergeanty,  30 
Petty  Sessions,  474 
Pipe  Roll,  10 
Placemen,  292,  368 
Placita  Corona,  see  Pleas  of  the  Crown 
Pleas  of  the  Crown,  107-11 
Police  System,  485-92,  502-3 
Poor  Laws,  233,  384,  412,  415,  497-9 
Posse  ComitatitSi  see  Militia 
Possessory  Assizes,  124-5,  r3^~9 
Postmaster-General,  413 
Poyningb'  Law,  333-5 
Pradpe,  Writ,   roo,  IT2-3 
Prcemuiiientes  Clause,  78, 166, 240- 1,513 
Pt'temunire^  Statute  of,  218 
Preliminary  Examination,  232-3 
Prerogative,    i95~7>    298-301,     34?-3» 

418-21,  422-30 
Prime  Minister,  396,  404-5 
Primer  Seisin,  27-8 
Primogeniture,  37-8,   157 
Privilege,  Parliamentary,  240-5,  320-4, 

374-So 
Privy   Council,    91,    136,   187-8,    199- 

200,    216-19,    221-6,   255-75,    320, 

334i  337.  388-90,  394-5.  400,  405-7  ; 

Judicial  Committee  of,  340,  462-3 
Probate  and  Divorce,  u,  464,  471-2, 

523 

Procedure,  Chancery,  469-71 
Procedure,  Legal,   115-31 
Procedure,  Parliamentary,  248 
Proclamations,  256-8,  302 
Proclamations,  Act  of,  253 
Proctors,  73,  77,  166 
Prohiliftions,  268-9 
Prosecutions,  481-2 
Protestation  of  1621,  243 
Provisions  of  Oxford,  73 
Provisions,  Papal,  172,  507 
Provisors,  Statute  of,  186,  218 
Proxies,  248 
Public  Health  Act,  498 
Purveyance,  183,  327 

Quakers,  363,  52; 
ualificatiori  (parliament),  291-2,  369- 
70;   (commission  of  the  peace),  ^209 
Quarter  Sessions,  206-9,  231-3,  474-5, 

486-7 
Quia  Emptores,  24,  25,  51,  73,  86 

Raleigh,  W.,  21 

Real  and  Personal  Property,  37